Adobe Systems Inc. et al. v. KLJ Computer Solutions Inc. et al., (1999) 166 F.T.R. 184 (TD)

• Court: Federal Court (Canada)
• Case Date: April 27, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 166 F.T.R. 184 (TD)

Adobe Systems Inc. v. KLJ Computer (1999), 166 F.T.R. 184 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. MY.117

Adobe Systems Incorporated and Microsoft Corporation (plaintiffs) v. KLJ Computer Solutions Incorporated, McArthur Thompson & Law Advertising & Public Affairs Limited, One 2 One Databased Marketing Communications Limited and MT&L Proactive Research Department Incorporated carrying on business as RDI Research Department (defendants)

(T-2725-97)

Indexed As: Adobe Systems Inc. et al. v. KLJ Computer Solutions Inc. et al.

Federal Court of Canada

Trial Division

Richard, A.C.J.

April 27, 1999.

Summary:

The plaintiff software companies obtained an Anton Piller order against the defendants based on allegations of use of unauthorized copies of their computer programs. The order was subsequently continued. Two of the defendants moved to set aside the order and sought damages and solicitor and client costs.

The Federal Court of Canada, Trial Divi­sion, dismissed the motion.

Injunctions - Topic 1785

Interlocutory or interim injunctions - Pres­ervation of status quo - Seizure (Anton Piller Order) - The plaintiff soft­ware com­panies obtained an Anton Piller order against the defendants based on allegations of unauthorized use of their com­puter programs - The defendants moved to set aside the order - There was evidence that the defendant possessed and used un­licensed copies of the plaintiffs' pro­grams - Software piracy was a signifi­cant prob­lem - The plaintiffs wanted to pre­serve evidence of the copied software given the ease with which unlicensed copies could be destroyed - In fact, subse­quent to the order, the defendants had purchased licenses and destroyed their un­licensed copies - The defendants asserted that the plaintiffs had not inquired into their good reputable character to show that they would not have destroyed the evi­dence - The Federal Court of Canada, Trial Divi­sion, dismissed the motion - The plaintiffs showed a strong prima facie case, evidence of serious injury and likelihood of destruc­tion.

Injunctions - Topic 1785

Interlocutory or interim injunctions - Pres­ervation of status quo - Seizure (Anton Piller Order) - The plaintiff soft­ware com­panies obtained an Anton Piller order against the defendants based on allegations of unauthorized use of their com­puter programs - The defendants moved to set aside the order - They asserted that the plaintiffs, by limiting their inquiry to a corporate registry printed search, had failed to make full inquiry into their good busi­ness reputation and into the informant's credibility - The defend­ants relied on their good reputation to negate likelihood of destruction of evi­dence - The Federal Court of Canada, Trial Division, held that the plaintiffs' inquiry was insuffi­cient to show likeli­hood of destruction - How­ever, evidence obtained after execu­tion of the order established likelihood of destruc­tion -The court therefore dismissed the motion - See paragraphs 65 to 90.

Practice - Topic 3379.1

Interim proceedings - Preservation of property - Anton Piller Order - Condi­tions precedent - [See both Injunctions - Topic 1785 ].

Practice - Topic 3379.2

Interim proceedings - Preservation of property - Anton Piller Order - When available - [See first Injunctions - Topic 1785 ].

Practice - Topic 3379.3

Interim proceedings - Preservation of property - Anton Piller Order - Setting aside - [See first Injunctions - Topic 1785 ].

Cases Noticed:

Indian Manufacturing Ltd. et al. v. Lo et al. (1998), 215 N.R. 76; 75 C.P.R.(3d) 339 (F.C.A.), refd to. [para. 31].

Piller (Anton) K.G. v. Manufacturing Processes, [1976] Ch. 55 (C.A.), refd to. [para. 35].

Nintendo of America Inc. v. Coinex Video Games Inc. et al., [1983] 2 F.C. 189; 46 N.R. 311 (F.C.A.), refd to. [para. 35].

Brink's-MAT Ltd. v. Elcombe et al., [1983] 3 All. E.R. 188 (C.A.), refd to. [para. 46].

Proctor & Gamble Inc. et al. v. John Doe et al. (1997), 138 F.T.R. 250 (T.D.), refd to. [para. 47].

Gulf Islands Navigation Ltd. v. Seafarers' International Union (1959), 18 D.L.R.(2d) 625 (B.C.C.A.), refd to. [para. 47].

Counsel:

Lloyd Hoffer and Christopher Reed, for the plaintiffs;

James Gould and Walter Thompson, for the defendants, McArthur Thompson & Law Advertising & Public Affairs Ltd. and One 2 One Databased Mar­keting Communications Ltd.;

Shawn O'Hara, for the defendant, KLJ Computer Solutions Inc.

Solicitors of Record:

Morris, Rose, Ledgett, Toronto, Ontario, for the plaintiffs;

McInnis, Cooper & Robertson and Burke, Mitton, Thompson, Halifax, Nova Scotia, for the defend­ants, McArthur Thompson & Law Advertising & Public Affairs Ltd. and One 2 One Databased Marketing Com­munications Ltd.;

Goldberg, Thompson, Halifax, Nova Scotia, for the defendant, KLJ Computer Solutions Inc.

Richard, A.C.J., of the Federal Court of Canada, Trial Division, heard this motion on November 9 and 10, 1999, at Halifax, Nova Scotia, and delivered the following decision on April 27, 1999.