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 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.