Geographic Resources Integrated Data Solutions v. Peterson, 2012 ONSC 7182
This is an appeal from a Master’s decision dismissing the plaintiffs’ motion to file an Amended Amended Statement of Claim. The plaintiffs
commenced an action against the defendants Peterson, a former director,
officer, and project manager of the plaintiffs, and a law firm NOP, and
one of its members, Yan, who filed a Canadian patent for Peterson. The
plaintiffs sought, inter alia, a declaration that they are the
sole and exclusive owners of the intellectual property, and that
Peterson holds in trust for them the invention in question and any
patents relating to it, including the Canadian patent obtained with the
assistance of NOP and Yan.
During the discovery process, Peterson, by mistake, produced to the
plaintiffs an e-mail from Tracey Ross, another lawyer at NOP, to
Peterson in which Ross provided certain legal advice to Peterson
regarding the filing of a patent application for the invention in
question (Document 134).
The Master determined that privilege did not attach to Document 134
and that Peterson had to answer questions in relation to the legal
advice and services provided by NOP and Yan. The Master concluded that
there was a waiver of solicitor-client privilege in regard to the patent
application and also that the document might fall within the future
crime and fraud exception.
Subsequently, the plaintiffs brought a motion before the Master
seeking leave to further amend their Statement of Claim to include a
claim against NOP and Yan for damages pursuant to the doctrine of
knowing assistance in regard to Peterson’s breaches of fiduciary duty.
The Master found that the proposed claim for knowing assistance was a
new cause of action not encompassed in the existing pleading, and that
it was limitation barred. The plaintiffs appealed.
The Divisional Court dismissed the appeal.
The Court upheld the Master’s application of the legal test for the
knowing assistance cause of action and the finding that it was
limitation barred.