The Court of Appeal has just released its decision in GasTOPS Ltd. v. Forsyth et al. This case is well-known in the East Region and arose out of the departure of a number of employees of a software company, GasTOPS, who then formed their own competing company, MxI. GasTOPS sued MxI and its founders for breach of fiduciary duty and other relief. Following a very lengthy trial, Mr. Justice Granger ordered MxI to disgorge profits of $12,306,495 and ordered damages against the individual founders in the same amount. He also awarded prejudgment interest of $3,039,944 and full indemnity costs of $4,252,920.24.
MxI appealed, principally with respect to the trial judge’s use of a ten year period for the calculation of the disgorgement of profits. The Court of Appeal rejected that argument on the basis that such a calculation is very much driven by the facts and that the trial judge had evidence to support his choice of that period here. MxI’s appeal was dismissed.
GasTOPS cross-appealed Justice Granger’s refusal to order a permanent injunction. The cross-appeal too was dismissed.
The Court of Appeal concluded its reasons by sharply criticizing the duration of the lawsuit:
 I wish to conclude with an expression of concern about the length of time that this proceeding took. There is no doubt that it involved significant stakes, and some issues that were not easy. But it took seven years. The evidentiary portion of the trial took three and a half years. There were 295 days of evidence and 70,000 pages of exhibits. Written submissions occupied more than 3,000 pages and took a further year and a half. The reasons for judgment took another two years, and ran to 668 pages.
 It is important to reiterate that the principle of proportionality is a vital prerequisite to an efficient and effective justice system. Counsel and especially the trial judge have a responsibility to manage the processes with this in mind. It is difficult to conclude that a trial of this length and a record of this magnitude were necessary to resolve the issues in this case.
Interestingly, this trial was conducted “electronically”, with counsel, the trial judge and the witness all having computer monitors before them. Documents were imaged in Summation and were accessed and displayed in that fashion.
Justice Granger (who is now retired) has long been a strong proponent of the use of technology in litigation and has written approvingly of the Summation software in particular and has given presentations in which he has advocated the approach used in the GasTOPS case.
The use of litigation technology is a cause that I too strongly support. However, based on the dim view that the Court of Appeal has taken of the end result in GasTOPS, it might be time to go back to the drawing board…