Intellectual Property Law - SCJ

The applicants, five community futures organizations, sought the appointment of MNP Ltd. as receiver over Future Health Technologies Inc. (FHT) under section 243 of the Bankruptcy and Insolvency Act and section 101 of the Courts of Justice Act.

FHT provides technology and technical support for the Community Paramedicine Remote Patient Monitoring Program (CPRPM), which delivers free tele-home monitoring services to approximately 1,500 chronically ill patients in rural Ontario.

The respondent, 2804476 Ontario Inc., opposed the application, arguing the receivership was a scheme to seize control of disputed intellectual property.

The court found that FHT was insolvent, that the appointment of a receiver was necessary to preserve critical healthcare services, and that the applicants held valid secured debt.

The court appointed the receiver and granted a stay of proceedings in related litigation, while confirming that the receiver would not take possession of disputed intellectual property without further court order.

The applicant, Edgewater Park Lodge Inc., sought a permanent injunction and statutory damages against the respondents, Robert and Carol Cadman, for operating a restaurant under the name “Red Canoe Family Restaurant,” which was found to be deceptively similar to the applicant’s “Red Canoe Restaurant.” The court found that the similarity of the names caused or was likely to cause confusion and granted a permanent injunction restraining the respondents from using the name or any similar name, as well as ordering statutory damages and the removal of all related social media and advertising.

The plaintiffs sought an interlocutory injunction against the defendants for passing off their sports hydration products (Cwench) as the plaintiffs' (BioSteel).

The plaintiffs alleged that Cwench's products, flavors, and packaging ("get-ups") were confusingly similar to BioSteel's.

The court dismissed the injunction request, finding that the plaintiffs failed to establish a strong prima facie case or a serious issue to be tried regarding goodwill in their product's get-ups, misrepresentation causing confusion, or actual/potential damages.

The court determined the injunction was mandatory, requiring a higher "strong prima facie case" standard, and found that similarities were common industry features or functional choices, and evidence of consumer confusion was insufficient.

The Lakehead District School Board (the Board) brought a motion for summary judgment against Anna Mauro, operating as 807 ISC Thunder Bay, alleging copyright and moral rights infringement.

The Board claimed Mauro produced and sold clothing featuring names, mascots, logos, and colour schemes of its schools without authorization.

Mauro argued the works were not registered, not original, and her designs were sufficiently different.

The court found that copyright subsisted with the Board, was infringed by Mauro, and granted declarations, a permanent injunction, delivery up of infringing works, and damages representing disgorgement of profits.

The Board's claim for punitive damages was dismissed.

The plaintiffs, GS International Holdings Ltd. and Yin Wu, brought a $5 million action for contractual debt, business defamation, and intentional interference with economic relations against Smart Vision Direct Inc., Galaxy Security Corporation, and Li Fang Chen.

The defendants counterclaimed for $30 million, alleging breach of fiduciary duties and contractual breaches by the plaintiffs and other parties.

The court found Annie Chen (Li Fang Chen) liable for contractual debt ($122,000 to GS International, $30,000 to Gabriel Wu/Yin Wu) and for intentional interference with economic relations ($40,000 to GS International) and defamation ($2,000 to Gabriel Wu).

The court dismissed the counterclaim, finding no breach of fiduciary duty or restrictive covenant by the defendants to counterclaim, largely due to the vague and contradictory nature of the post-separation business agreement and insufficient evidence of damages.

The plaintiff, Vaultose Digital Asset Services Inc., sought an interim and interlocutory worldwide injunction to restrain the defendants from developing, monetizing, using, or disclosing technology related to the "QDS Platform," alleging breach of confidentiality covenants.

The defendants, including Tilo Kunz and William Yakamovich, denied misuse of confidential information, asserting their work relied on public knowledge and prior experience.

Concurrently, the defendants moved for security for costs.

The court applied the "strong prima facie case" test for the injunction due to its intrusive nature.

The court found the plaintiff failed to establish a strong prima facie case for breach of confidence or misuse of confidential information, noting the vagueness of the alleged information and lack of specific evidence.

The injunction motion was dismissed.

The defendants' motion for security for costs was granted, with the plaintiff ordered to pay $121,000 in security for anticipated partial indemnity costs through discovery and mediation, plus $25,000 for the security for costs motion.

The applicant, Unitop, sought a declaration and injunction against the respondent, Exclusive, alleging breach of a 2015 default judgment and trademark infringement/passing off.

Unitop claimed Exclusive's "ORIGINAL SESAME" product, with similar packaging and UPC codes, infringed on Unitop's "SESAME SNAPS" intellectual property.

The court found the 2015 default judgment ambiguous and not applicable to Unitop's new packaging design (adopted in 2020) or Exclusive's "ORIGINAL SESAME" product (introduced in 2021).

The court also determined that Unitop failed to prove valid and enforceable trademark or copyright rights in its new packaging design or establish the elements of passing off, particularly distinctiveness and confusion.

The application was dismissed.

The defendants brought a joint motion to strike out the amended statement of claim without leave to amend, and for an order dismissing the action, alleging insufficient material facts to support claims of misappropriation and misuse of confidential information.

The court reviewed the amended pleading against its prior decision, which had struck the original statement of claim with leave to amend due to vagueness.

The court found that the amended statement of claim sufficiently particularized the types of confidential information, the products to which they related, and the alleged instances and methods of misappropriation and misuse by each defendant, satisfying the minimum level of material fact disclosure required for such claims.

The motion was dismissed.

The plaintiff, Homestead House Paint Co. Inc., brought a motion for an interlocutory injunction to prevent the defendant, Wendy Jamieson, from disclosing confidential information in alleged breach of a non-disclosure agreement (NDA).

The plaintiff also sought an order sealing the court file and holding hearings in camera.

The court found a serious question to be tried regarding the NDA's breach concerning the supplier's identity, but dismissed the injunction motion due to the plaintiff's failure to demonstrate irreparable harm.

The court rejected the contractual clause deeming irreparable harm and found the alleged harm to be speculative.

A limited confidentiality order was granted, requiring the redaction of the supplier's name from court materials, consistent with the open court principle.

The plaintiffs, Evertz Technologies Limited and Evertz Microsystems Limited, brought an action alleging theft of confidential information by former employees and competing businesses.

The defendants moved to strike the statement of claim in its entirety, arguing that the plaintiffs failed to provide sufficient particulars regarding the alleged confidential information, its misuse, and its incorporation into the defendants' products.

The court found that the statement of claim, even with supplemental particulars, did not meet the minimum level of material fact disclosure required for claims of misappropriation and misuse of confidential information.

Consequently, the statement of claim was struck out, but the plaintiffs were granted leave to serve an amended statement of claim within 30 days.

The plaintiff sought an interlocutory injunction to prevent the defendants from using the name "Kishki Halal Supermarket" for a new grocery store, alleging passing off.

The court applied the three-stage test for interlocutory injunctions from *RJR-MacDonald* and the components of a passing off action.

The court found that the plaintiff failed to establish a serious issue to be tried, specifically regarding public deception and actual/potential damage caused by deceptive misuse of goodwill.

The court also found no irreparable harm and that the balance of convenience favored the defendants.

The motion was dismissed, and costs were awarded to the defendants.

The defendants brought a motion under Rule 21.01(1) to strike portions of the plaintiff's statement of claim, specifically targeting claims against defendant Tyulenyev, the claim for passing off, and the claim for unlawful interference with economic relations.

The court applied the "plain and obvious" test, finding that sufficient material facts were pleaded to support the claims against Tyulenyev, including personal liability for copyright infringement despite not being a directing mind of the corporation.

Regarding the passing off claim, the court acknowledged its novelty in recognizing the "style and content" of reports as a "get-up" but held that novelty alone is not a basis to strike a claim if material facts are pleaded and there is a reasonable prospect of success.

For the unlawful interference claim, the court found that an intention to injure could be inferred from the pleaded facts and that the "public" relying on the plaintiff's reports was sufficiently identified as a third party.

Consequently, the motion to strike was dismissed in its entirety.

The plaintiff, Kevin Ramon Johnson, sued the defendant, Deniz Rakhmanova, for libel and unlawful interference with economic relations, seeking substantial damages and a permanent injunction.

Both parties, self-represented, brought motions for summary judgment.

The plaintiff's motion was dismissed due to his repeated non-attendance.

The defendant's cross-motion sought to dismiss the proceeding as frivolous, without merit, and a Strategic Lawsuit Against Public Participation (SLAPP).

The court dismissed the claim for unlawful interference with economic relations due to insufficient pleading.

For the defamation claim, the court found that most of the defendant's statements were truthful and justified, relating to the plaintiff's unauthorized use of her vocals in a new song recording (Recording 2), thereby dismissing those parts of the defamation claim.

The remaining defamation claims were also dismissed as the appropriate forum was deemed to be the United States, given the plaintiff's reliance on a US copyright registration.

The defendant's anti-SLAPP motion was dismissed as the dispute was not a matter of public interest.

The plaintiff was ordered to pay costs to the defendant for her material success on the motion and his non-attendance.

The plaintiff, Aon Benfield Canada ULC, sought an award of costs following a proceeding that involved an interim injunction, an interlocutory injunction, and a settlement of the action.

The defendant, Aamir Vazir, a former employee, had misappropriated highly sensitive proprietary software ("PathWise") and attempted to erase evidence.

The court granted the injunctions and the action settled, with costs being the only outstanding issue.

Aon Benfield sought $269,463.89 in costs, including significant disbursements for technical support.

Vazir opposed, arguing issues related to the plaintiff's conduct and the proportionality of the costs.

The court found the hours worked by the plaintiff's counsel not excessive given the case's importance and Vazir's egregious conduct.

However, to balance the indemnity principle with access to justice and avoid a "chilling effect," the court reduced the legal fees by $20,000, awarding Aon Benfield $249,463.89, payable within 90 days.

The plaintiff, Shaver-Kudell Manufacturing Inc. (SK), sued the defendants, Knight Manufacturing Inc. (KM), Lucy Shaver (a former long-term employee of SK), Dusko Ballmer (Lucy's common-law spouse and KM's consultant), and Alexander Knecht (KM's founder), for misappropriation of trade secrets related to its metal sleeve manufacturing process and tooling, and for breach of confidence regarding its customer list.

The court found that SK's manufacturing process and tooling were trade secrets, and that the defendants breached confidence and misappropriated these secrets.

Additionally, the court found that Lucy Shaver breached her duty of confidence and good faith by using her memorized knowledge of SK's customer list to solicit clients for KM shortly after leaving SK's employment.

The plaintiffs sought summary judgment to recognize and enforce a U.S. default judgment in Ontario against the defendants for copyright and trademark infringement and unfair competition.

The defendants challenged the U.S. court's jurisdiction, alleged fraud, and claimed a denial of natural justice due to improper service.

The Ontario Superior Court found that the U.S. court properly exercised jurisdiction based on a 'real and substantial connection' to Virginia, dismissed the fraud defense, and confirmed proper service.

The court granted summary judgment, enforcing both the monetary damages and the permanent injunction from the U.S. judgment.

The defendants brought a motion to terminate a reference under Rule 54.04, seeking to return the action to the regular court stream.

The plaintiff opposed.

The court determined that the reference could not be concluded without the referee delivering an interim or final report and a mediation taking place, as stipulated by the original order and Rules 54.06 and 54.08(1).

Consequently, the motion was adjourned pending the completion of these steps.

The Plaintiffs brought a motion to compel the Defendants to answer undertakings, questions taken under advisement, and refusals from examinations for discovery, and to serve a further affidavit of documents and re-attend discovery.

The Master, applying principles of proportionality and relevance, granted most of the Plaintiffs' requests, ordering the Defendants to provide specific information and documents related to warranty claims, alleged trademark/copyright infringement damages, corporate affiliates, sales data, and customer information.

Some requests were dismissed as disproportionate or already addressed.

The Master also ordered the Defendants to provide outstanding Lawyer's Certificates and re-attend discovery.

Bell Canada sought an interlocutory injunction against Cogeco Cable Canada GP Inc. regarding two aspects of Cogeco's new advertising campaign: the phrase "the best Internet experience in your neighbourhood" and the rebranding of Internet packages with the prefix "Ultra" (e.g., UltraFibre 250).

Bell alleged false and misleading representations under the Competition Act and Trade-marks Act, as well as common-law claims.

The court applied the RJR-MacDonald test for interlocutory injunctions.

It found a serious question to be tried, irreparable harm, and that the balance of convenience favored granting an injunction against the use of "the best Internet experience in your neighbourhood," as Cogeco could not objectively claim to offer the best speed and performance in all areas.

However, the court denied an injunction regarding the "UltraFibre" branding, deeming it puffery when accompanied by specific speed commitments.

The defendants, Pfizer, brought a motion under Rule 21.01(1)(b) to strike various claims in the plaintiff Apotex Inc.'s Amended Statement of Claim.

Apotex sought relief for being kept out of the market by Pfizer's invalid patent for Viagra, asserting statutory claims under the Patented Medicines (Notice of Compliance) Regulations, Statutes of Monopolies, and Trade-marks Act, and common law claims for unjust enrichment, nuisance, Ashby v. White, and conspiracy.

The court struck the claims under s. 8 of the PMNOC Regulations and the independent cause of action based on Ashby v. White, finding that the statutory conditions for PMNOC damages were not met and Ashby v. White is a principle, not a cause of action.

However, the court dismissed Pfizer's motion to strike the claims under the Trade-marks Act, unjust enrichment, nuisance, and conspiracy, rejecting the 'complete code theory' as insufficiently settled for a preliminary stage motion and finding the pleadings for these claims to disclose a reasonable cause of action.