DATE: 20050912

DOCKET: C43286

COURT OF APPEAL FOR ONTARIO

RE:

SPOTWAVE WIRELESS INC. (Plaintiff) – and – DAVID BONGFELDT, personally, and as TRUSTEE OF THE BONGFELDT FAMILY TRUST (Defendants)

BEFORE:

LASKIN, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Phillip G. Hunt

for the appellants

Stephen Victor and Steven Garland

for the defendants

HEARD & RELEASED ORALLY:

August 31, 2005

On appeal from the judgment of Justice George T. Valin of the Superior Court of Justice dated February 18, 2005.

E N D O R S E M E N T

[1] The appellant appeals from summary judgment dated February 18, 2005 granted by Valin J. to the respondents dismissing the appellant’s counterclaims for a declaration he was the owner of certain technology and related relief.

[2] The motions judge concluded that the evidence clearly established that the appellant had assigned any rights he may have had in the technology to Spotwave Wireless Inc., and that Spotwave was the owner of the concepts and designs. He also found that it was a term of the appellant’s employment contract that if he were terminated he would not claim ownership of the technology but only advance a claim for damages. Consequently, he concluded that there was no genuine issue for trial.

[3] We were not persuaded that the result of the motion would have been different had the trial judge found that Spotwave was a closely held corporation. Nor do we agree that the appellant did not receive consideration for the employment contracts he signed after he was already in the employ of Spotwave.

[4] In careful reasons, the motion judge applied the relevant legal principles to the material before him, and reached the correct conclusion that there was no genuine issue for trial in respect of the matters for which he granted the respondent summary judgment.

[5] The appeal is dismissed with costs on a partial indemnity basis in the amount of $15,000 all inclusive.

“J.I. Laskin J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”