Canada: Federal Court Of Appeal Grants An Implied Software Licence To Former Business Partners

Last Updated: September 15 2014
Article by Matthew Finn

On July 25, 2014, the Federal Court of Appeal released its decision in Planification-organisation-publications Systèmes Ltée v 9054-8181 Québec Inc, 2014 FCA 185 in relation to software copyright. The decision affirmed, in part, the decision of the Federal Court granting an implied software licence to the former business partners of the appellants. The unanimous decision was written by Justice Gauthier.

The litigation related to ownership and licencing of copyright in the computer programs Ceres, Omega, Comex, and Epsilon. In 1984, Elizabeth Posada began developing Ceres, a DOS computer program to help students and business executives learn business concepts. Omega, Comex, and Epsilon are the updated Windows versions of Ceres.

In or around 2007, Posada joined 9054-8181 Québec Inc. (IDP), a company formed by her friends Philippe Chapuis and Benoît Bazoge, as an employee and shareholder for the purpose of developing Omega, Comex, and Epsilon. On October 20, 2008, following a dispute regarding compensation, Posada stopped working for IDP, resigned as a shareholder, and demanded that IDP stop using the software.

At trial, the judge confirmed that Planification-organisation-publications Systèmes Ltée (POPS) (Posada's company, of which she was the sole officer and shareholder and which she had created to licence the software) was at least one of the rightful owners of the copyright in Ceres, Omega, Comex, and Epsilon, and that IDP had an implied non-revocable licence to the software, which included access to the source code and future adaptations developed by or on behalf of IDP.

On appeal, POPS and Posada (the appellants) asserted, among other things, that the Trial Court had erred in its determination of the scope of the licence, and in its finding that the licence was non-revocable.

The appellants argued that the Trial Court made two errors warranting the intervention of the Court of Appeal with respect to the scope of the licence for future adaptations and access to the source code. First, the appellants asserted that the trial judge failed to apply the correct principles of law to determine the scope of the licence. The Appellants claimed that the trial judge should have used the systematic approach from the English case Griggs Group Ltd. v. Evans.1 Second, the appellants asserted that the trial judge had acted ultra petita. According to the principle of ultra petita, a judge cannot grant more than is sought in the proceedings.

Justice Gauthier found that IDP, Chapuis, and Bazoge (the respondents) had never requested access to the source code or a right to future adaptations. Consequently, the Court of Appeal restricted IDP's licence to the use of Ceres, Omega, Epsilon, and Comex to the forms in which they existed when Posada stopped working for IDP, without access to the source code.

With respect to the issue of whether the licence ought to be interpreted as being revocable, the appellants argued that the trial judge had made a number of errors in law in determining that the licence was non-revocable. They asserted that the trial judge should have relied on the systematic approach from Griggs v. Evans. Further, they argued that granting a non-revocable licence was not reasonable or equitable given the absence of consideration now that the respondents were no longer collaborating with the appellants. Finally, the appellants argued that the licence was conditional on the continued collaboration between the parties.

Rejecting the test from Griggs v. Evans proposed by the appellants, Justice Gauthier insisted instead on determining the revocability of the licence using the standard rules for interpreting contracts in the civil law — that is, according to the intention of the parties. Justice Gauthier noted that the standard of review for determining the intention of the parties was palpable and overriding error. Concluding that the appellants had been unable to establish any palpable or overriding error in the trial judge's assessment of the parties' intentions, Justice Gauthier affirmed the decision at trial that the licence was non-revocable.

Citing past consideration, such as the $2,000 paid to POPS for the licence and the significant investment of time and money by IDP in the development of the Windows versions of the software, Justice Gauthier found nothing unreasonable or unfair about a non-revocable licence in the absence of current or ongoing consideration. And noting again IDP's investment in the development of Omega, Comex, and Epsilon, Justice Gauthier said it would not have made sense for IDP to leave itself vulnerable to having its licence unilaterally revoked by Posada. Therefore, the Court of Appeal concluded that the licence was not conditional on the continued collaboration between the parties.

Finally, the appellants asserted the trial judge erred in law by not applying the principle that "a software licence supported by consideration that does not expressly state the tenor of the licence, may include an implied term that as long as the licensee does not misconduct himself, he can continue to use it."2 The appellants claimed that the respondents had repudiated the licence by their misconduct. Justice Gauthier rejected this argument as well, having found no misconduct in the actions of the respondents.

This decision highlights the importance of having clear and unequivocal language in licence agreements, particularly with respect to the scope of what the licence permits a licensee to do, and with respect to revocability of the licence.


1 [2005] EWCA Civ 11 at para 13 [Griggs v Evans].

2 See Planification-organisation-publications Systèmes Ltée v 9054-8181 Québec Inc, 2014 FCA 185 at para 38.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.