Sangeetha Punniyamoorthy

This decision concerns a costs award following the dismissal of the plaintiff's Rule 45.02 motion.

The court fixed costs at $53,500, payable by the plaintiff to the defendants.

The defendants' request for increased costs, based on supplementary written submissions and a rejected Rule 49 offer to settle, was denied.

The court reasoned that the supplementary submissions related to a point (existence of a "specific fund") that was resolved in the plaintiff's favour, and that elevated costs for a dismissed motion require evidence of egregious or reprehensible conduct, which was not present.

The plaintiff, 3Genius Corporation, brought a motion under Rule 45.02 of the Rules of Civil Procedure for an order requiring Apple Inc. to pay holdback amounts from a transaction with the defendants, Locationary Inc. and Grant Ritchie, into court pending trial.

The plaintiff alleged misappropriation of software and sought damages, an accounting, and tracing.

The court applied a three-part test for Rule 45.02 motions: (i) claim to a specific fund, (ii) serious issue to be tried, and (iii) balance of convenience.

While the court found a reasonably identifiable fund, it determined that the plaintiff's claim was, in essence, a claim for damages, not a legal right to the specific fund, which is not permissible under Rule 45.02.

Furthermore, the balance of convenience did not favour the plaintiff, as there was no evidence of intent to flee or dissipate assets.

The motion was dismissed with costs.

The defendants sought leave to appeal an order dismissing their motion for summary judgment and awarding the plaintiff $81,955.05 in costs.

The underlying action involved claims of software copyright infringement, which the defendants argued were barred by a quitclaim and the expiry of the limitations period.

The Divisional Court dismissed the motion for leave to appeal, finding no error in the motion judge's conclusion that the limitations and quitclaim issues required a trial to resolve credibility concerns.

The court also declined to grant leave to appeal the costs award, finding the motion judge reasonably inferred the plaintiff's costs based on the disparity between the parties' costs outlines.

The defendant brought a motion for summary judgment to dismiss the plaintiff's claims regarding intellectual property rights in software, arguing the claims were barred by a quitclaim agreement and the expiry of the limitation period.

The court dismissed the motion, finding that significant credibility issues existed regarding the execution and knowledge of the quitclaim, as well as the discoverability of the claim, which could not be resolved fairly using the enhanced fact-finding powers under Rule 20.04.

The matter was directed to proceed to trial in the normal course.

A freelance author brought a class proceeding alleging copyright infringement arising from newspaper publishers' republication of articles in electronic databases and CD-ROM archives.

The Court held that databases presenting articles as decontextualized individual works did not reproduce the publishers' collective newspaper work and therefore infringed freelance authors' copyrights absent consent, but that the CD-ROM product sufficiently preserved the linkage to daily editions and was a valid reproduction of the newspaper.

The Court further held that only exclusive licences require writing under the Copyright Act, and that staff writers should not have been included in the class because they had no cause of action unless they had exercised their statutory right to restrain publication.

The appeal was dismissed and the cross-appeal allowed only with respect to the CD-ROMs.