Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al., (1998) 129 Man.R.(2d) 161 (CA)

• Judge: Scott, C.J.M., Philp and Kroft, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 24, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 129 Man.R.(2d) 161 (CA);1998 CanLII 4886 (MB CA);162 DLR (4th) 111;[1998] 10 WWR 455;42 CCLT (2d) 133;80 CPR (3d) 449;[1998] MJ No 297 (QL);129 Man R (2d) 161

Apotex Fermentation v. Novopharm  (1998), 129 Man.R.(2d) 161 (CA);

    180 W.A.C. 161

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. JL.008

Apotex Fermentation Inc. and Apotex Inc. (plaintiffs/respondents) v. Novopharm Ltd., Albert D. Friesen, Jagroop Dahiya, Leslie Dan, Sydney Smith, Rafick Henein, KRKA P.O. (defendants/appellants)

(AI 97-30-03367; AI 97-30-03486)

Indexed As: Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al.

Manitoba Court of Appeal

Scott, C.J.M., Philp and Kroft, JJ.A.

June 24, 1998.

Summary:

A former employee of Apotex went to work for Novopharm. Apotex sued Novopharm, a Novopharm supplier and personal defendants, alleging that the employee breached his covenant of nondisclosure of secret and confidential information. Apotex obtained an Anton Piller order and a 10 day interim injunction. The injunction was subsequently confirmed and made interlocutory prohibiting the defendants from performing research or other activities respecting certain drugs upon which the employee had been working while he was employed at Apotex. The trial was delayed. All of the defendants, except the employee, moved to vary the injunction to allow the defendants to proceed with work on two particular drugs, with the injunction to remain in effect respecting the employee.

The Manitoba Court of Queen's Bench, in a decision reported 94 Man.R.(2d) 161, allowed the motion to vary. Apotex and others appealed.

The Manitoba Court of Appeal, in a decision reported 95 Man.R.(2d) 241; 70 W.A.C. 241, allowed the appeal, set aside the variation and restored the interim injunction. At trial, Apotex sought a continuation of the interim injunction for five years.

The Manitoba Court of Queen's Bench, in a decision reported at 105 Man.R.(2d) 1, concluded that the employee breached his duty of confidence and held Novopharm vicariously liable for the breach. The court dismissed the action against the personal defendants and the suppliers. Apotex was awarded $3,718,369 compensatory damages and was granted an order making the injunction permanent for 28 months. After reasons were delivered, but prior to the judgment role being entered, the trial judge, in a decision reported 106 Man.R.(2d) 172, ordered that the trial be reopened to deal with issues respecting disclosure of a particular trade secret in a subsequent patent and whether that disclosure had any impact on the damage award or injunctive relief.

The Manitoba Court of Queen's Bench, in the judgment reported 116 Man.R.(2d) 37, considered the new issues and affirmed its original decision. Apotex alleged that Novopharm or some of the other defendants acted in breach of the injunction or the Anton Piller order and were in contempt of court.

The Manitoba Court of Queen's Bench, in a decision reported 122 Man.R.(2d) 15 found Novopharm Ltd. and the defendant Smith guilty of civil contempt of court.

The Manitoba Court of Queen's Bench, in a decision reported 122 Man.R.(2d) 23, fined Novopharm Ltd. $1,250,000 and Smith $20,000. Novopharm appealed the finding of liability against it and the award of damages and the granting of the permanent injunction. Apotex cross-appealed to increase the compensatory damages and to extend the injunction on basis of Novopharm's "misbehaviour" as found in the contempt proceedings. Apotex also appealed against the dismissal of the main action against the personal defendants and the supplier. Novopharm and Smith appealed the finding of contempt and the amount of the fine. Apotex cross-appealed against the finding that the other officers of Novopharm were not personally in contempt and against the refusal to grant a further punitive injunction. Apotex applied to introduce new evidence, consisting of the documentation and testimony in the contempt proceedings including documents that the trial judge had refused to admit as new evidence following the main trial's completion.

The Manitoba Court of Appeal, with respect to the main action, allowed Apotex's application to introduce new evidence, dismissed Novopharm's appeal respecting liability and damage, allowed Apotex's appeal against the dismissal of the action as against the personal defendants and the supplier, allowed Apotex's appeal respecting the duration of the permanent injunction and extended the injunction by 19 months. The court awarded Apotex costs on the appeal and cross-appeal to be fixed by the court. In all other respects, the court dismissed Novopharm's and Apotex's appeals in the main action. The court dismissed Novopharm's and Smith's appeal against the finding of contempt, but allowed the appeals respecting the amount of the fine and reduced Novopharm's fine to $100,000 and Smith's fine to $10,000. The court allowed Apotex's cross-appeal, found the other personal defendants to be in contempt of court and imposed fines of $10,000 each. With respect to the contempt proceedings, the court awarded Apotex costs on a solicitor and client basis to be paid by Novopharm.

Editor's note: for related proceedings involving the same parties see 93 Man.R.(2d) 19; 95 Man.R.(2d) 186; 70 W.A.C. 186; 111 Man.R.(2d) 97; 116 Man.R.(2d) 216; 123 Man.R.(2d) 189; 159 W.A.C. 189.

Company Law - Topic 4190

Directors - Liability of directors - Defences - Lack of knowledge - While employed with Apotex, a generic drug company, Dahiya obtained knowledge of trade secrets relating to the development of the drug Lovastatin - Dahiya became employed by Novopharm and breached his duty of good faith to Apotex by disclosing the trade secrets to Novopharm - The trial judge held that Novopharm was vicariously liable for Dahiya's breach of confidence where Dahiya was acting within the scope of his employment - The trial judge dismissed Apotex's claim against the Novopharm's officers and directors where they were unaware of Dahiya's breach of confidence - The Manitoba Court of Appeal affirmed Novopharm's liability - However, based on fresh evidence, the court held that there was active knowledge by Novopharm through its senior officers and the senior officers were personally liable - See paragraphs 103 to 153.

Company Law - Topic 4562

Officers and agents - Liability - General - Defences - Lack of knowledge - [See Company Law - Topic 4190 ].

Company Law - Topic 4567

Officers and agents - Liability - General - Breach of trust - [See Company Law - Topic 4190 ].

Contempt - Topic 503

What constitutes contempt - General principles - Civil and criminal contempt distinguished - The Manitoba Court of Appeal discussed the distinction between civil and criminal contempt - See paragraphs 272 to 283.

Contempt - Topic 505

What constitutes contempt - General principles - Civil contempt - Apotex and Novopharm were generic drug companies - Apotex sued, inter alia, Novopharm and its senior officers respecting misappropriation of trade secrets respecting a generic version of a drug called Lovastatin - Apotex obtained an Anton Piller order and an injunction prohibiting Novopharm and the officers from performing research or other activities relating to the production of Lovastatin or derivative drugs - Subsequently Novopharm failed to disclose documents relating to Lovastatin and used those document in making an application respecting Lovastatin to an American regulatory agency - The Manitoba Court of Court of Appeal held Novopharm and the officers to be in contempt of court - See paragraphs 284 to 313.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - [See Contempt - Topic 505 ].

Contempt - Topic 690

What constitutes contempt - Judgments and orders - Injunctions - Disobedience of - [See Contempt - Topic 505 ].

Contempt - Topic 3315

Punishment - Fines - Apotex and Novopharm were generic drug companies -Apotex sued, inter alia, Novopharm and its senior officers respecting misappropriation of trade secrets respecting a generic version of a drug called Lovastatin - Apotex obtained an Anton Piller order and an injunction prohibiting Novopharm and the officers from performing research or other activities relating to the production of Lovastatin or derivative drugs - Subsequently Novopharm and one of officers were held in contempt of court for not disclosing documents relating to Lovastatin and using those document in making an application to an American regulatory agency - The trial judge fined Novopharm $1,250,000 and the officer $20,000 - The Manitoba Court of Appeal found Novopharm and all the officers to be in contempt - The court held that the fines were inordinately high and reduced Novopharm's fine to $100,000 and fined each of the officers $10,000 - See paragraphs 314 to 326.

Damages - Topic 106

General principles - Evidence and proof - Onus of proof - Plaintiffs were awarded damages against the defendants - After reasons were delivered, but prior to the judgment role being entered, the defendants successfully applied to reopen the trial to deal with certain issues which had the potential of reducing the damage award - The trial judge affirmed his prior damage award - The defendants appealed, asserting that the trial judge erred by placing the onus on them to disprove damages at the reopened trial - The Manitoba Court of Appeal rejected the assertion - The trial judge had already weighed the evidence respecting damages at trial and decided in the plaintiffs' favour - The reopening of the trial on the defendants' application did not place the onus on the plaintiffs to prove again the damages they had established during the course of the lengthy trial - See paragraphs 231 to 237.

Damages - Topic 803

Assessment - General - Where amount of loss difficult to estimate or determine - The Manitoba Court of Appeal stated that "[w]here injury has been suffered in a complex commercial setting, a 'flexible and imaginative approach' to the assessment of the damages may be required. This, we believe, accords with the principle long since adopted by the Supreme Court of Canada [see Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd.] that 'difficulty in ascertaining the amount of the loss is no reason for not giving substantial damages.'" - See paragraph 210.

Equity - Topic 3825

Fiduciary or confidential relationships - Trade secrets - Remedies - Damages - While employed by Apotex, a generic drug company, Dahiya obtained knowledge of trade secrets relating to a process for the development of the drug Lovastatin - Dahiya became employed by Apotex's competitor, Novopharm, and used his knowledge to help develop Lovastatin for Novopharm - Apotex successfully sued Dahiya and Apotex for Dahiya's breach of confidence - In awarding damages, the trial judge rejected the loss of profits approach where it was too costly and time consuming and the development process was not entirely tangible and its benefits difficult to quantify - The court applied the loss of investment/cost approach and awarded Apotex $3,718,369 in compensatory damages - The Manitoba Court of Appeal affirmed the decision - See paragraphs 184 to 230.

Equity - Topic 3905

Fiduciary or confidential relationships - Breach of confidence - Remedies - Damages - [See Equity - Topic 3825 ]

Equity - Topic 3908

Fiduciary or confidential relationships - Breach of confidence - Duty of third parties - The Manitoba Court of Appeal, rejected the assertion that an employee's breach of confidence respecting the misappropriation of confidential information could not be used as a basis for the application of the doctrine of vicarious liability where it was not a tort - See paragraphs 106 to 117.

Equity - Topic 3908

Fiduciary or confidential relationships - Breach of confidence - Duty of third parties - A former employee of Apotex disclosed Apotex's trade secrets respecting the development of the drug Lovastatin to Novopharm - Apotex sued for breach of confidence, claiming against a foreign company which had collaborated with Novopharm, asserting that the company was a knowing participant in the misappropriation, or, alternatively, had continued to use information obtained contrary to a Canadian court order - The trial judge dismissed the claim where there was no legal reason for the company to have considered itself bound by the Canadian order and the company acted in good faith - The Manitoba Court of Appeal, based on new evidence, held that the company had been wilfully blind and was liable to Apotex - See paragraphs 154 to 163.

Equity - Topic 3908

Fiduciary or confidential relationships - Breach of confidence - Duty of third parties - [See Company Law - Topic 4190 ].

Injunctions - Topic 6308

Injury to trade - Improper use of property -Dahiya, a former employee of Apotex, disclosed to Apotex's competitor, Novopharm, Apotex's trade secrets respecting the development of the drug Lovastatin - Apotex sued, inter alia, Dahiya and Novopharm and obtained an interlocutory injunction prohibiting the defendants from performing research or other activities relating to the production of Lovastatin or derivative drugs - At trial, Apotex sought to extend the injunction for five years - In granting Apotex judgment, the trial judge extended the injunction to 28 months - The Manitoba Court of Appeal affirmed the scope of the injunction - The court noted that Novopharm had "cheated" on the interlocutory injunction for 19 months and extended the injunction by 19 months to restore its original period - See paragraphs 164 to 183.

Injunctions - Topic 7129

Particular interests protected - Confidential information - [See Injunctions - Topic 6308 ].

Master and Servant - Topic 3679

Liability of master for acts of servant - Torts - General - Acts in course of employment - [See Company Law - Topic 4190 and first and second Equity - Topic 3908 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - A trial judge found that Novopharm appropriated an invention and trade secrets that belonged to Apotex -After release of the reasons for judgment but prior to the judgment roll being entered the trial was reopened - At the rehearing, the trial judge refused Apotex's request to adduce fresh evidence - The fresh evidence was subsequently admitted into contempt proceedings which had been commenced against Novopharm in this matter - The evidence indicated, that contrary to the trial judge's conclusions, Novopharm had breached an injunction and had deliberately failed to disclose documents - Appeals from the decisions in the main action and the contempt proceedings were consolidated - Apotex sought to introduce the fresh evidence in the main action appeal - The Manitoba Court of Appeal admitted the evidence - See paragraphs 123 to 142.

Cases Noticed:

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14; 35 E.T.R. 1, refd to. [para. 111].

P.A.B. v. Curry - see P.A.B. v. Children's Foundation et al.

P.A.B. v. Children's Foundation et al. (1997), 89 B.C.A.C. 93; 145 W.A.C. 93; 146 D.L.R.(4th) 72 (C.A.), refd to. [para. 115].

Lockhart v. Canadian Pacific Railway Co., [1942] 3 W.W.R. 149 (P.C.), refd to. [para. 116].

Limpus v. London General Omnibus Co. (1862), 158 E.R. 993 (Ex.), refd to. [para. 116].

Concrete Column Clamps (1961) Ltd. v. Royal Bank of Canada, [1977] 2 S.C.R. 456; 8 N.R. 451, refd to. [para. 116].

Boma Manufacturing Ltd. et al. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727; 203 N.R. 321; 82 B.C.A.C. 161; 133 W.A.C. 161, refd to. [para. 116].

Janvier v. Sweeney, [1919] 2 K.B. 316 (C.A.), refd to. [para. 117].

Hamlyn v. Houston & Co., [1903] 1 K.B. 81 (C.A.), refd to. [para. 117].

Emerald Construction Co. v. Lowthian and others, [1966] 1 All E.R. 1013 (C.A.), refd to. [para. 118].

57134 Manitoba Ltd. v. Smith Paper Ltd., Palmer and Classic Packaging Corp. (1989), 37 B.C.L.R.(2d) 50 (C.A.), refd to. [para. 118].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46; 62 C.R.(3d) 313; [1988] 3 W.W.R. 193, refd to. [para. 124].

Cohen v. West Vancouver Municipal Transit et al., [1995] B.C.J. No. 439 (C.A.), refd to. [para. 124].

Schwartz v. Canada - see Minister of National Revenue v. Schwartz.

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 129].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241, refd to. [para. 129].

Craven v. Smith (1869), L.R. 4 Exch. 146, refd to. [para. 134].

Dormuth and Ursel v. Untereiner and Muskovitch, [1964] S.C.R. 122, refd to. [para. 137].

Harper v. Harper, [1980] 1 S.C.R. 2; 27 N.R. 554, refd to. [para. 138].

Strach Developers Ltd. and Cree Airways Corp. v. Toronto-Dominion Bank (1990), 110 A.R. 12 (C.A.), refd to. [para. 139].

Vagi et al. v. Peters, [1990] 2 W.W.R. 170; 81 Sask.R. 253 (C.A.), refd to. [para. 140].

London & Provincial Sporting News Agency Ltd. v. Levy (1928), MacG. Cop. Cas. (1923-28) 340, refd to. [para. 149].

Ansell Rubber Co. Pty. Ltd. v. Allied Rubber Industries Pty. Ltd., [1967] V.R. 37 (S.C.V.), refd to. [para. 149].

New Zealand Needle Manufacturers Ltd. v. Taylor and another, [1975] 2 N.Z.L.R. 33 (S.C.), refd to. [para. 149].

Mentmore Manufacturing Co. and Rotary Pen Corp. v. National Merchandise Manufacturing Co. (1978), 22 N.R. 161; 89 D.L.R.(3d) 195 (F.C.A.), refd to. [para. 155].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1994] 8 W.W.R. 727 (B.C.S.C.), revd. in part [1996] 9 W.W.R. 609; 79 B.C.A.C. 56; 129 W.A.C. 56 (C.A.), refd to. [para. 156].

Apple Computer Inc. et al. v. Mackintosh Computers Ltd. et al. (No. 1) (1986), 3 F.T.R. 118; 28 D.L.R.(4th) 178 (T.D.), refd to. [para. 156].

Air Canada v. M & L Travel Ltd., Martin and Valliant, [1993] 3 S.C.R. 787; 159 N.R. 1; 67 O.A.C. 1, refd to. [para. 158].

Canson Enterprises Ltd. et al. v. Boughton & Co. et al., [1996] 1 W.W.R. 412; 63 B.C.A.C. 209; 104 W.A.C. 209 (C.A.), refd to. [para. 158].

AB Consolidated Ltd. v. Europe Strength Food Co. Pty. Ltd., [1978] 2 N.Z.L.R. 515 (C.A.), refd to. [para. 159].

Terrapin Ltd. v. Builders' Supply Co. (Hayes) Ltd. and others, [1967] R.P.C. 375 (Ch. Div.), affd. [1960] R.P.C. 128 (C.A.), refd to. [para. 167].

Seager v. Copydex Ltd. (No. 2), [1969] 2 All E.R. 718 (C.A.), refd to. [para. 168].

International Tools Ltd. v. Kollar et al., [1968] 1 O.R. 669; 67 D.L.R.(2d) 386 (C.A.), refd to. [para. 169].

Montour Ltée v. Jolicoeur, [1988] R.J.Q. 1323 (S.C.), refd to. [para. 169].

Peter Pan Manufacturing Corp. v. Corsets Silhouette Ltd., [1963] 3 All E.R. 402 (Ch. Div.), refd to. [para. 169].

Monovis Inc. v. Aquino (1994), 905 F.Supp. 1205 (W.D.N.Y.), refd to. [para. 174].

Pepsico Inc. v. Redmond et al. (1995), 54 F.3d 1262 (7th Cir.), refd to. [para. 175].

Elcor Chemical Corp. v. Agri-Sul Inc. (1973), 494 S.W.2d 201 (Civ. App. Tex.), refd to. [para. 176].

Bullivant (Roger) Ltd. and others v. Ellis and others, [1987] I.C.R. 464 (C.A.), refd to. [para. 180].

Potters-Ballotini Ltd. v. Weston-Baker and others, [1977] R.P.C. 202 (C.A.), refd to. [para. 180].

Harrison v. Project & Design Co. (Redcar) Ltd., [1978] F.S.R. 81 (Ch. Div.), refd to. [para. 180].

Titan Group Pty. Ltd. v. Steriline Manufacturing Pty. Ltd. (1991), 19 I.P.R. 353 (Aus. Fed. Ct.), refd to. [para. 180].

Speed Seal Products Ltd. v. Paddington, [1985] 1 W.L.R. 1327 (C.A.), refd to. [para. 182].

Cawood Patent (1876), 94 U.S. 695 (U.S.S.C.), refd to. [para. 197].

Tilghman v. Proctor (1887), 125 U.S. 136 (U.S.S.C.), refd to. [para. 198].

Servo Corp. of America v. General Electric Co., 220 F.Supp. 473, revd. in part and remanded (1964), 337 F.2d 716 (4th Cir), reheard (1965), 342 F.2d 993 (4th Cir.), certiorari denied (1966), 383 U.S. 934; 86 S.Ct. 1061, rehearing denied (1966), 384 U.S. 914; 86 S.Ct. 1333, revd. and remanded (1968), 393 F.2d 551, refd to. [para. 200].

Kubik Inc. v. Hull (1974), 224 N.W.2d 80 (Mich. App.), refd to. [para. 201].

Salsbury Laboratories Inc. v. Merieux Laboratories Inc. (1989), 735 F.Supp. 1555 (U.S. Dist. Ct.), confirmed (1990), 908 F.2d 706 (11th Cir.), refd to. [para. 202].

University Computing Co. v. Lykes-Youngstown Corp. (1974), 504 F.2d 518 (5th Cir.), refd to. [para. 204].

Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd., [1976] 1 S.C.R. 267; 4 N.R. 1, refd to. [para. 205].

Telex Corp. v. International Business Machines Corp. (1973), 367 F.Supp. 258 (Okla. Dist. Ct.), refd to. [para. 206].

Computer Print Systems Inc. v. Lewis (1980), 422 A.2d 148 (Pa. Sup. Ct.), refd to. [para. 206].

Ellicott Machine Corp. v. Wiley Manufacturing Co. (1969), 297 F.Supp. 1044 (Md. Dist. Ct.), refd to. [para. 206].

ICAM Technologies Corp. v. EBCO Industries Ltd. (1991), 36 C.P.R.(3d) 504 (B.C.S.C.), refd to. [para. 207].

Enterprise Manufacturing Co. v. Shakespeare Co. (1944), 141 F.2d 916 (6th Cir.), refd to. [para. 209].

MacDonald v. Alderson and Manitoba (1982), 15 Man.R.(2d) 35 (C.A.), refd to. [para. 210].

De Groot v. St. Boniface General Hospital et al., [1994] 6 W.W.R. 541 (Man. C.A.), refd to. [para. 210].

Perry v. Clintar Ltd. (1996), 41 C.B.R.(3d) 90 (Ont. C.A.), refd to. [para. 220].

Burns v. Kelly Peters & Associates Ltd., [1985] Can. Rep. B.C. 690 (S.C.), affd. in part [1987] 6 W.W.R. 1 (B.C.C.A.), refd to. [para. 220].

Gompers v. Buck's Stove & Range Co. (1911), 221 U.S. 418; 31 S.Ct. 492, refd to. [para. 276].

Klett v. Pim (1992), 965 F.2d 587 (8th Cir.), refd to. [para. 279].

N.L.R.B. v. Laborer's International Union of North America (1989), 882 F.2d 949 (5th Cir.), refd to. [para. 280].

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 283].

Chicago Blower Corp. v. 141209 Canada Ltd. and Transregent Holdings Ltd. et al. (1987), 44 Man.R.(2d) 241 (C.A.), refd to. [para. 283].

Ontario (Attorney General) v. Magder (Paul) Furs Ltd. (1993), 12 O.R.(3d) 72 (Gen. Div.), refd to. [para. 283].

Dubiner v. Cherrio Toys and Games Ltd., [1965] 2 Ex. C.R. 488, refd to. [para. 291].

Glazer v. Union Contractors Ltd. (1960), 34 W.W.R.(N.S.) 690 (B.C.C.A.), refd to. [para. 291].

Davis v. Barlow (1911), 21 Man.R. 265 (K.B.), refd to. [para. 291].

Vidéotron Ltée et Premier Choix; TVEC Inc. v. Industries Microlec produits électroniques Inc. et autres, [1992] 2 S.C.R. 1065; 141 N.R. 281; 50 Q.A.C. 161, refd to. [para. 316].

R. v. Southam Press (Ontario) Ltd. et al. (1976), 31 C.C.C.(2d) 205 (Ont. C.A.), refd to. [para. 326].

Authors and Works Noticed:

Atiyah, P.S., Vicarious Liability in the Law of Torts (1967), p. 658 [para. 114].

Brait, R.A., The Unauthorized Use of Confidential Information (1991), 18 C.B.L.J. 323, generally [para. 109].

Canada, Law Reform Commission, Criminal Law - Contempt of Court: Offences Against the Administration of Justice, Working Paper No. 20 (1977), p. 12 [para. 282].

Corpus Juris Secundum (1989), vol. 17, p. 261 [para. 275].

Fleming, John G., The Law of Torts (8th Ed. 1992), pp. 377, 378, 379 [para. 116].

Fridman, G.H.L., The Law of Torts in Canada (1990), vol. 2, p. 206 [para. 106].

Gurry, Breach of Confidence (1991), pp. 26 [para. 111]; 58, 59 [para. 112]; 266 [para. 173]; 267 to 271 [para. 106]; 272, 273, 274 [paras. 106, 152, 169]; 275 [paras. 169, 170]; 276 [para. 169]; 277 to 280 [paras. 106, 169]; 281, 282 [para. 106]; 283 [paras. 107, 108].

Heuston and Chambers - see Salmond and Heuston, The Law of Torts.

Jones, Gareth, Restitution of Benefits Obtained in Breach of Another's Confidence (1970), 86 L.Q.R. 463, p. 476 [para. 157].

Leistensnider, Trade Secret Misappropriation: What is the Proper Length of an Injunction After Public Disclosure? (1987), 51 Albany L. Rev. 272, pp. 291, 292 [para. 177].

Salmond and Heuston, The Law of Torts (18th Ed. 1981), p. 437 [para. 113].

Salmond, The Law of Torts (14th Ed.), generally [para. 114].

Sharpe, Robert J., Injunctions and Specific Performance (2nd Ed.) (1996 Update), p. 6-15 [para. 291].

Stuckey, J., The Liability of Innocent Third Parties Implicated in Another's Breach of Confidence (1981), 4 U.N.S.W.L.J. 73, p. 83 [para. 158].

Vaver, D., Civil Liability for Taking or Using Trade Secrets in Canada (1981), 5 C.B.L.J. 253, pp. 283, 284, 286 [para. 169].

Young, Stephen S., and Palladino, Margaret J., Monetary Damages in Trade-Secret Cases (1989), 25 Trial 45, p. 45 [para. 199].

Counsel:

Y.M. Henteleff, Q.C., D.T. Stockwood, Q.C., R.S. Literovich, R.E. Shannon and I.L. Maharaj, for the appellants;

D.C.H. McCaffrey, Q.C., G.P.S. Riley, J.A. Myers and P.D. Fitzpatrick, for the respondents.

These matters were heard on December 2-5 and 8, 1997, before Scott, C.J.M., Philp and Kroft, JJ.A., of the Manitoba Court of Appeal.

The decision of the Court of Appeal was delivered on June 24, 1998 by the Court.