On November 28, 2002, the Supreme Court of Canada dismissed an application for leave to appeal an Ontario Court of Appeal’s decision in a case involving the entitlement to copyright in computer programme software in Delrina Corporation (carrying on business as Carolian Systems) v. Triolet Systems Inc and Brian Duncombe.
The court’s decision affirmed a March 2002 Court of Appeal decision, dismissing the claims of Delrina that Triolet Systems and Duncombe had infringed upon Delrina’s copyright when Duncombe created his early performance-monitoring programmes in the mid-1980s. The court also upheld a separate damages claim of $6.9 million awarded to Triolet and Duncombe, stemming from an interlocutory injunction, which prevented the defendants from entering this lucrative market until the conclusion of the trial in 1993.
In the mid-1980s, Duncombe wrote the software for a performance monitor programme for Carolian Systems (since acquired by Delrina). After leaving Carolian and forming his own company, Triolet Systems, he developed another performance monitor for Hewlett Packard and wrote software for Triolet’s programme.
Carolian then sued Duncombe and Triolet, claiming that in creating his own programmes, Duncombe had copied Carolian’s software and infringed upon its copyright. Carolian then obtained the interlocutory injunction that prevented Triolet and Duncombe from profiting from their performance-marketing software from 1987 until 1993, when the trial concluded in their favour. After trial, Duncombe and Triolet received a finding that they had neither copied Carolian’s software nor infringed upon its copyright, despite the fact that the programmer had written performance monitor programmes for both Carolian and his new company. A separate trial was held in 1998 to determine the damages suffered by Triolet and Duncombe as a result of the injunction. Together with interest and legal costs, the total amount of damages award was approximately $12 million. The Court of Appeal upheld both the liability and the damages judgments in full. The S.C.C. refused leave to appeal from the Court of Appeal’s decision.
F. Paul Morrison and Barry Sookman of McCarthy Tétrault LLP acted for Duncombe, Triolet and their solicitor, T. James Treloar. Nigel Campbell, Anthony Prenol and George Fisk of Blake, Cassels & Graydon LLP represented Delrina (c.o.b. as Carolian Systems) before the Ontario Court of Appeal and in the leave to appeal application.
The court’s decision affirmed a March 2002 Court of Appeal decision, dismissing the claims of Delrina that Triolet Systems and Duncombe had infringed upon Delrina’s copyright when Duncombe created his early performance-monitoring programmes in the mid-1980s. The court also upheld a separate damages claim of $6.9 million awarded to Triolet and Duncombe, stemming from an interlocutory injunction, which prevented the defendants from entering this lucrative market until the conclusion of the trial in 1993.
In the mid-1980s, Duncombe wrote the software for a performance monitor programme for Carolian Systems (since acquired by Delrina). After leaving Carolian and forming his own company, Triolet Systems, he developed another performance monitor for Hewlett Packard and wrote software for Triolet’s programme.
Carolian then sued Duncombe and Triolet, claiming that in creating his own programmes, Duncombe had copied Carolian’s software and infringed upon its copyright. Carolian then obtained the interlocutory injunction that prevented Triolet and Duncombe from profiting from their performance-marketing software from 1987 until 1993, when the trial concluded in their favour. After trial, Duncombe and Triolet received a finding that they had neither copied Carolian’s software nor infringed upon its copyright, despite the fact that the programmer had written performance monitor programmes for both Carolian and his new company. A separate trial was held in 1998 to determine the damages suffered by Triolet and Duncombe as a result of the injunction. Together with interest and legal costs, the total amount of damages award was approximately $12 million. The Court of Appeal upheld both the liability and the damages judgments in full. The S.C.C. refused leave to appeal from the Court of Appeal’s decision.
F. Paul Morrison and Barry Sookman of McCarthy Tétrault LLP acted for Duncombe, Triolet and their solicitor, T. James Treloar. Nigel Campbell, Anthony Prenol and George Fisk of Blake, Cassels & Graydon LLP represented Delrina (c.o.b. as Carolian Systems) before the Ontario Court of Appeal and in the leave to appeal application.
