Walter Scott Gallagher

This decision addresses whether software developed by an employee (Vladimir Krougly) while employed at Nexus Solutions Inc. was created in the course of employment, such that Nexus would own the copyright in the software (Limedas) later commercialized by Limesoft Inc. The court finds that although Krougly was the author of the software, it was not created in the course of his employment with Nexus, and thus Nexus is not entitled to a proprietary remedy under copyright law.

The court reviews the factual background, credibility of witnesses, expert evidence, and the legal framework for copyright ownership in the employment context.

This decision addresses a costs motion following the applicant's successful interim restraining order.

The court applied Rule 24(12) of the Family Law Rules to determine costs, rejecting the applicant's argument for near full recovery based on a misinterpretation of Berta v. Berta, as clarified by Beaver v. Hill.

While the respondent's conduct was deemed unreasonable and provocative, it did not constitute bad faith.

The court found the applicant's counsel's time and hourly rate reasonable and proportional to the issue, ultimately ordering the respondent to pay $6,500 in costs.

The applicant sought an interim restraining order against the respondent under section 46(1) of the Family Law Act due to reasonable grounds to fear for her safety.

The parties, former cohabitants, were engaged in acrimonious litigation, particularly concerning the beneficial ownership of the Mayfair property where the applicant resided.

The respondent's unilateral declaration of intent to enter the property for bow hunting precipitated the motion.

The court found the applicant's fear for her psychological and physical safety to be reasonable and legitimate, supported by evidence of past intimidation and provocative conduct.

The interim restraining order was granted, prohibiting the respondent from attending within 200 metres of the Mayfair property and 100 metres of the applicant's place of employment.

The order was made without prejudice to the respondent's right to seek its termination if the proceeding is not finalized by June 30, 2023.

The applicant father brought an urgent motion for the return of the parties' three-year-old child, whom the respondent mother had withheld, alleging the father's substance use posed a risk.

The mother also sought an interlocutory order for primary care.

The court addressed the father's motion and the mother's responding material, including issues of inadmissible hearsay evidence.

An interim, without prejudice, parenting order was issued, granting the mother unsupervised parenting time, including overnights, and the father supervised parenting time in the presence of the paternal grandmother.

The mother's motion for primary care was adjourned to a later date, and the balance of motions were dismissed with costs reserved.

This protracted estate litigation involved an application by Richard Belanger seeking to refer various estate administration issues, including those related to a "butterfly transaction," to a retired judge, Mr. McGarry, for arbitration or reference.

A responding motion by Judith Olivastri sought to dismiss Belanger's application.

The court found that the "Agreement in Principle" between the siblings contemplated a court-directed reference, not arbitration, and that the condition precedent for this agreement (CRA approval of the butterfly transaction) had not been met.

Furthermore, the agreement to refer issues to Mr. McGarry was limited to "outstanding applications and motions" at the time of the agreement, which did not include disputes about the butterfly transaction itself.

The court also clarified that a motion for summary judgment (Rule 20) or to stay/dismiss an action (Rule 21.01(3)(c)) is not applicable to applications.

Belanger's application was dismissed.

The applicant father brought an emergency motion for a police assistance order to enforce a temporary parenting order after the respondent mother withheld the child due to concerns about the father's adherence to COVID-19 social distancing recommendations.

The court found the mother's self-help approach to be in contravention of an existing court order.

Adopting the principle that the COVID-19 pandemic does not automatically suspend in-person parenting time, the court ordered the child's return to the father's primary care, emphasizing that parents must act reasonably to protect children's best interests.

A police assistance order was included, with costs reserved.

The Creditor sought payment of $19,293.49 from the Debtor, comprising a lump sum payment ordered in prior matrimonial litigation and alleged spousal support arrears.

The lump sum payment was a condition precedent for the relinquishment of spousal support claims, but it was not made.

The court found that the Creditor's right to claim spousal support survived due to the unfulfilled condition.

However, the court dismissed the application for the specific spousal support amount, stating that entitlement and quantum needed to be established in Unified Family Court.

The Debtor was ordered to pay $7,817.49 on account of the original lump sum.

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 court addressed costs following a settlement in a family law equalization payment dispute.

The applicant had sought an unequal division, ultimately agreeing to an $80,000 equalization payment to the respondent.

Both parties sought costs, alleging unreasonableness by the other.

The court, applying the Courts of Justice Act and Family Law Rules, found it difficult to determine a "successful party" or assess reasonableness retrospectively in a settled matter without objective benchmarks.

Citing Witherspoon v. Witherspoon and Talbot v. Talbot, the court emphasized that post-settlement cost claims are problematic and that settlement implies compromise.

No costs were awarded, with each party bearing their own.

The plaintiff software company brought a motion seeking injunctive relief prohibiting the defendants from marketing competing software allegedly derived from the plaintiff’s proprietary source code and confidential information.

The motion followed earlier interlocutory orders requiring both parties to deposit their source code and select an independent expert to conduct a comparative analysis to determine whether copyright infringement had occurred.

The court found the original injunction resembled a quia timet order granted on speculative evidence, with no proof of actual or imminent harm.

The defendants had repeatedly proposed a neutral comparison of the competing source codes, including permitting the plaintiff’s own expert to conduct the review, while the plaintiff declined to proceed.

The court held that irreparable harm had not been established and that the balance of convenience favoured allowing the defendants to continue selling their software pending trial.

The motion for injunction and related motions were dismissed and the status quo maintained pending expert comparison.