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October 19, 2009

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SPORTS MANAGEMENT CONFERENCE & TRADE SHOW - CLE Credit 1-416-777-2392 November 9 & 10, 2009 Toronto portsMng_LT_Oct19_09 - V2.indd 1 $3.55 • Vol. 20, No. 32 10/7/09 3:35:38 PM Covering Ontario's Legal Scene tlePlus_LT_Jan26_09.indd 1 Case ends in $11-million judgment against Ottawa executives Paperless trial breaks ground BY TIM NAUMETZ For Law Times OTTAWA — A "paperless" trial that ended recently with an $11.4-million judgment against four software executives in Ottawa has broken new ground in Ontario. But lawyers say the province is well be- hind other jurisdictions when it comes to electronic courts. Superior Court Justice Thomas Granger awarded the substantial damages last month after 295 days of hearings that spanned three years with 2,893 exhibits and a total of 70,000 pages, all of which were filed, viewed, and argued while in an electronic format. Fittingly, the four executives of a success- ful defence industry firm Granger found liable for breaching fiduciary trust were themselves technology brains. In the case that began with a statement of claim in 1996, Granger found the execu- tives had resigned that year without proper notice to their firm, GasTOPS Ltd., and went on to use privileged access to con- fidential software information, as well as commercial information about clients and marketing plans, to duplicate GasTOPS' trade secrets and lure away its customers. The four founded a new firm, Mxi Tech- nologies Ltd., and began approaching Gas- TOPS' clients — including the U.S. navy — to convince them they had the Canadian technology the clients were seeking after suc- cessful past dealings with GasTOPS. GasTOPS had developed the leading-edge There were other applications, and the client list that eventually shifted from Gas- TOPS to Mxi included the Kuwaiti air force, the Canadian Department of Transport, and the RCMP. The defendants, Bradley Forsyth, Douglas Brouse, Jeffrey Cass, and Robert Vandenberg, had all helped to develop the program for Gas- TOPS. From the evidence, it was clear they didn't leave the company on good terms, giv- ing only two weeks' notice each. "Former employees cannot compete unfairly after leaving their employment," Granger, himself a computer-software and electronic-courtroom enthusiast, wrote. Granger said Forsyth and Brouse, the first 'It's scary to think how long the trial might have been if we hadn't used an electronic courtroom,' says John Yach. computer software systems and databases over two decades. The technology was used to con- duct sophisticated analysis of gas-turbine en- gines for the Canadian Forces CF-18 fighter jets as well as Sea King naval helicopters. The programs helped to detect damage and prevent malfunctions before catastrophic failure. to leave, should have given GasTOPS 10 months' notice and added that "as a result of their failure to provide reasonable notice, the defendants are responsible for the damages resulting from that failure." Other findings included the fact that all the defendants were "well aware at all ma- terial times that the business opportunities GasTOPS was pursuing and its proposals to potential customers [were] confidential business information." One of the lawyers for the defendants, Ste- phen Appotive of Hamilton Appotive LLP in Ottawa, tells Law Times the defendants will appeal Granger's ruling, a development a law- yer for GasTOPS was expecting. John Yach, a member of the GasTOPS le- gal team, says there were several key aspects of the case. CBA offers tips on legal Tweeting L BY ROBERT TODD Law Times awyers eager to dip their toes into the world of new media in hopes of marketing their Lawyers can avoid pitfalls by focusing on providing value to potential clients rather than on aggressive marketing, says Michael Rabinovici. LawPro_LT_Oct19_09 - V6 10/14/09 11:34 AM Page 1 business can look to new guidelines from the Canadian Bar Association to avoid getting burned. Paul Paton, vice chairman of the CBA committee that cre- ated the guidelines, says the asso- ciation has received an influx of questions from lawyers looking for help implementing new mar- keting strategies without flouting professional regulations. Web sites, blogs, social networking sites, and Twitter accounts have all prompted inquiries, he says. "We know that there are people accessing or looking for lawyers through the Internet be- cause of what they're doing in the United States or the U.K.," says Paton, a professor at California's University of the Pacific Mc- George School of Law. "Lawyers themselves are finding different ways of actually functioning." He adds that many lawyers view the Internet as a forum to market their services more economically during tough financial times. Paton says the CBA pondered a revamp of its code of profession- al conduct based on the queries but decided it would be best to convey that the traditional rules haven't changed, but their ap- plication to new technology has. That prompted the 2008 release of the CBA's guidelines for prac- tising ethically with new informa- File your 2010 LAWPRO® See Judge, page 2 Head Start 6 9 Focus On Insurance Law Quote of the week "We're telling countries not to put in protectionist mea- sures, not to engage in this type of behaviour. Well, this is an example of a protec- tionist measure that Ontario is taking." — Cyndee Todgham Cherniak, international trade lawyer at Lang Michener LLP See Labelling, page 4 Big Businesses Get A Break October 19, 2009 TitlePLUS title insurance and you, together we have all the tools TitlePLUS title insurance and you, together we have all the tools. 1/20/09 12:14:52 PM Inside This Issue 3 tion technologies and the recent marketing guidelines. The guidelines, prepared by the CBA's ethics and professional re- sponsibility committee, are found in a concise 11-page document. They begin by encouraging lawyers to overcome fears about the po- tential pitfalls of having an online presence by focusing on the bene- fits. The document goes on to offer simple advice on things such as ac- ceptable web site addresses and blog titles, how lawyers should identify themselves online, the proper use of legal advice as a marketing strat- egy, avoiding of conflicts, and how to deal with unsolicited confiden- tial information. For example, lawyers are urged not to use a "web site address, blog See Business, page 5 insurance application online by Nov. 2 and save $25 per lawyer Lawyers' Professional Indemnity Company

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