Some would say keeping a software license alive by an injunction is like requiring specific performance of a contract – something courts don’t like to do. However, a recent Ontario decision appears to have done about just that, by relying on its discretion to grant “terms” according to Ontario Rule 37.13(1) in extending an interim injunction for six months, despite the plaintiff failing to justify its request for an interlocutory injunction to trial. … Continue Reading
The Supreme Court of Canada released a landmark decision today ruling that Canadian common law courts have the jurisdiction to make global de-indexing orders against search engines like Google. In so, ordering, the Court in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 underlined the breadth of courts’ jurisdiction to make orders against search engines to stem illegal activities on the Internet including the sale of products manufactured using trade secrets misappropriated from innovative companies.… Continue Reading
The online sale of a software licence constitutes a “use” in relation to a good for the purposes of Canadian trademarks. This was the recent holding of the Federal Court of Canada in Specialty Software v Bewatec, 2016 FC 223. This decision strengthens trademark protection for software in Canada and demonstrates that courts will adapt legal concepts to modern technology. Here, the traditional model of purchasing software on tangible media, such as a CD-ROM, is simply outdated. Software as a service (SaaS) offerings have greatly increased in recent years with the explosion of cloud computing, which essentially provides … Continue Reading
‘‘With the click of a mouse, personal health records can be accessed by those who have a legitimate interest in properly treating a patient – or they can be accessed for an improper purpose.’’
These were the opening words of the Ontario Superior Court in the case of Hopkins v. Kay where Representative Plaintiffs sought to bring a class action suit against a hospital and other defendants, alleging that approximately 280 patient records of the Peterborough Regional Health Centre (the ‘‘Hospital’’) were intentionally and wrongfully accessed by the Hospital’s staff and others.
The Plaintiffs based their claim on … Continue Reading
The Office of the Privacy Commissioner of Canada (‘‘OPC’’) recently published a research paper entitled ‘‘Privacy and Cyber Security: Emphasizing privacy protection in cyber security activities’’ in which are outlined the common interests and tensions between privacy and cyber security. The report sets out key policy indications with a view to generating dialogue on cyber security as an important element of online protection, while acknowledging that cyberspace governance is a global issue.
The OPC bases its report on the following factual premises. As technologies facilitating access to the Internet have become increasingly entrenched in everyday life, … Continue Reading
For a customer of outsourcing services, it is crucial that the outsourcing services agreement include well-drafted, clear and specific remedies to address vendor service performance failures that will have a material impact on the customer. A good example of what can happen when a service agreement is deficient in this area are the recent decisions in the ongoing litigation between the State of Indiana and IBM over a ten-yearperiod, $1.3 billion contract for IBM to modernize and manage the State of Indiana’s welfare system.
Less than three years into the ten-year contract, the State terminated the contract for cause citing … Continue Reading
In the case of XY, LLC v. Zhu, 2013 BCCA 352¸ the B.C. Court of Appeal has confirmed that employees of a company can be personally liable for the breach of a technology license agreement by their employer. The Court held that employees who continue to carry out low level tasks even after they become aware of their employer’s dishonest conduct may avoid liability; employees who knowingly assist their employer in carrying out a fraud can be personally liable for the damages caused by the company’s conduct.
The plaintiff XY, LLC was formed to bring to market technology that … Continue Reading