muniBLOG: Legal

How Precise Does Language Need to be in Software Licences? – You be the Judge NECI

Does your organization hold software licences? This recent case from Quebec is a cautionary tale about ensuring that you include accurate wording about the scope of any licence, and consider and address the issue of revocability. Can the licence be revoked? If so, under what circumstances?     

In 1984, then-student Elizabeth Posada developed a DOS computer program called Ceres to allow users, such as university students or business executives, to vary certain inputs to produce reports and learn business concepts. In December 1984, Posada incorporated a company called Planification-organisation-publications Systèmes (POPS) Ltée, of which she is the sole officer and shareholder.           

In 2007, Posada joined long-standing friends Philippe Chapuis and Benoît Bazoge as a shareholder and employee of their company, 9054-8181 Québec Inc. (IDP). The three had been doctoral students together and all had used Ceres while they were professors or lecturers at the Université du Québec à Montréal (UQAM). (In 1989, for $2,000, Benoît Bazoge had purchased a user’s licence for Ceres on behalf of UQAM. Philippe Chapuis had done the same on behalf of the École Supérieure de Commerce in Tours in 1990.)           

When Posada joined IDP in 2007, she effectively ceased POPS’ commercial operations, and even gave IDP the right to use the POPS trade name. Posada was hired to develop the adaptations of and enhancements to Ceres that IDP wanted. She was responsible for completing work on the software called Omega – the Windows version of Ceres – on which she, Chapuis and Bazoge had collaborated since 1998, and for developing the software that would become known as Epsilon and Comex. These two were scaled-down versions of Omega.           

In October 2008, Posada resigned as a shareholder of IDP because of a dispute over compensation, and left the company. She demanded that IDP stop using Ceres, Epsilon and Comex. IDP refused, and POPS sued IDP. The case went to the Federal Court in April 2009.           

In its April 2013 judgment, the Federal Court found that copyright subsisted in the Ceres software products and subsequent versions, POPS was at least one of the rightful owners of that copyright, IDP had at least an implied licence to use the products (including access to the source code and future adaptations that IDP might develop), POPS was not entitled to revoke that licence, and IDP had not infringed POPS’ copyright, so was not liable for any damages.           

POPS appealed the judgment, arguing, among other things, that Chief Justice Crampton had erred in his decision about the revocability of IDP’s licence, as well as about the scope of it, claiming that, following Posada’s departure, IDP did not have rights to the software, all future adaptations, and the source code – including the right to modify the code.           

See below to discover how the Federal Court of Appeal untangled this case.

Answer

The Federal Court of Appeal decision in Planification-organisation-publications Systèmes (POPS) Ltée v. 9054-8181 Québec Inc., 2014 FCA 185, which ultimately found for IDP, reminds us again that litigation is a poor substitute for clear and unequivocal language in contracts and agreements. Perhaps a more subtle lesson is to maintain a firm focus on legal rights and responsibilities, even – and some would argue, especially – when entering into business arrangements with ‘friends’. Expect the unexpected and plan for the end of the relationship, as you would for any contract.           

Posada made several claims. Among them, she claimed that the trial Court had failed to apply the correct principles of law in determining the scope of the software licence, and that, with respect to IDP’s access to the source code, the trial Court had acted ultra petita, meaning that the Court granted more than IDP had asked for (it had not in fact asked for access to the source code, or the right to modify it). With respect to the revocability of the licence, Posada argued that the trial Court had made several errors in law – including not taking a systematic approach from English case law – and that it was not reasonable or fair for IDP to hold a non-revocable licence after Posada and IDP went their separate ways, since (Posada claimed) the licence had been conditional on IDP and Posada working together.           

The Court found that IDP had indeed never asked for access to the source code or for the right to modify it in the future, so it limited IDP’s software licence to all versions of Ceres, Omega, Epsilon and Comex that existed at the end of the IDP/Posada collaboration, without IDP access to the source code.           

With respect to the revocability of the licence, the Court rejected Posada’s argument that the trial Court should have followed English case law. The appeal Court instead used the ‘intention of the parties’ test that is the standard of review under Canadian law. The appeal Court found that the trial Judge had not erred in this, so reaffirmed the trial decision that the licence was non-revocable. Further, the Court found that a non-revocable licence was reasonable and fair, given Bazoge’s and Chapuis’ early purchase of licences to use Ceres, and their later investments of money and staff resources to develop the software. In the Court’s opinion, and in the absence of explicit language to the contrary in the agreement, the licence was not therefore conditional on IDP and Posada working together.           

Although the Court held that IDP was the primarily successful party, each party was responsible for its own costs. The appeal was dismissed, except for a revision to the wording of the trial Court’s decision with respect to the scope of the licence, and specifically to the source code. 

Reprinted from The Legal Edge Issue 109, January – March 2015

 

Share

What does Bill 132 (Sexual Violence and Harassment Action Plan Act) mean to you and your workplace?

One in four women and one in ten men say they have experienced some form of sexual harassment in the workplace. Of the reported cases of workplace sexual harassment, 55% were committed by co-workers; 39% of which involved a supervisor or manager. 8% of those who are sexually harassed at work report the harassment.

Recently there have been some changes made to Bill 168 – Violence in the Workplace, which gives employers’ statutory obligations. Bill 132, Sexual Violence and Harassment Action Plan Act, which received royal assent on March 8, 2016, requires all employers to have policies and programs including an investigation procedure. The essential changes brought by Bill 132 include: an employer is required to create a workplace harassment program; the program must include reporting and investigating tools for incidents of workplace harassment and violence; the employers must ensure that all complaints are investigated, and investigations are completed in a timely fashion and a new power to the Ministry of Labour (MOL) to order an independent workplace harassment investigation at the employer’s expense.

September 8, 2016, now looms for companies as the date for compliance with Bill 132. The amendments stand to change dramatically how workplace harassment is addressed in Ontario. The new OHSA obligations and expectations have been set and are accompanied by expanded government oversight. Harassment in the workplace is already a challenging issue that could engage multiple forums, with complaints possibly being advanced through a grievance, civil claim, complaint under the Human Rights Code, and, depending on the severity of the conduct, the criminal justice system.

Also, and particularly, the Bill amends the OHSA to require an employer to conduct an investigation of a workplace harassment complaint that is “appropriate in the circumstances.” The phrase “appropriate in the circumstances” is not defined. Further, the Ministry of Labour has not published any guidance material to communicate what factors will be considered by inspectors when determining whether an investigation meets this standard. Assuming that the inspectors could be evaluating investigations against expected best practices which would include such things as an impartial investigator, a collection of all relevant information, and procedural fairness to the alleged harasser could create challenges for employers as the appropriateness of an investigation may be evaluated in hindsight.

Consequences of flawed investigations would impair or prejudice the employer’s ability to establish just cause for termination or discipline. There would also be an issue of due diligence under the OHSA and Human Rights Code. Consequences would include aggravated, punitive or Code damages; penalties from the Ministry of Labour under the OHSA and reinstatement in unionized workplaces. Some of the critical mistakes some employers are making include: failing to act at all; taking the complaint seriously; failure to train investigators; inability to plan, improper or inadequate files; and retention of evidence.

Many situations happening in the workplace may prompt the necessity for an investigation, such as allegations of discrimination or harassment, workplace bullying, inappropriate use of the internet or social media, policy breaches, or statutory violations. Often, employers attempt to resolve minor issues informally through discussions with the employees involved. When the allegations are more serious, employers may depend on managers to conduct internal investigations. However, in many situations, having an organization deal directly with the problem is not necessarily the best approach – informal discussions may rapidly collapse, and basic investigative steps may be overlooked by inexperienced managers, making matters worse. A vital skill for any employer is identifying when a formal investigation by an external investigator is appropriate.

Note: meeting the requirements of Bill 132 could lead to mistakes that can be costly to your organization.

Be prepared. Be proactive.

Contact Monika Jensen, Principal Aviary Group at [email protected]  or (905) 683-9953 if you need a complaint investigated or mediated.

Share

Embracing Civility for a More Satisfying WorkPlace

Complaints of harassment, discrimination, bullying and now violence and disrespectful workplaces have become a standard concern for managers and Human Resources specialist. As we cope with the many arising situations, I have found the word incivility is becoming frequently used. So what does incivility mean? To define it, let’s look at how the Institute of Civility describes it. Civility is about more than merely being polite. Civility requires a profound self-awareness being characterized by true respect for others. Civility involves the tremendous hard work of remaining present even with those with whom we have inherent and perhaps fierce differences. It is about continuously being open to hearing, to learning, to teaching and to changing. It pursues mutual ground as a start point for discussions when differences may occur, while at the same time be aware that differences are heartening. It is persistence, grace, and strength of character.

Recently research has expanded our practical understanding of incivility by identifying behaviours which employees have deemed disrespectful. The most frequently occurring forms include: neglecting to turn off cell phones; talking behind someone’s back; doubting someone’s judgement, using demeaning or disparaging language, gestures or behaviours; communicating with the intent to belittle or degrade, eye rolling, giving the silent treatment and using sarcasm; gossip and slander; paying no attention or ignoring someone; taking credit for someone else’s work or ideas; intimidation by intentionally using fear to manipulate others. It may also include yelling, invading personal space, throwing things, slamming things and losing one’s temper; and sabotaging by setting someone up to fail or intentionally creating a situation to make another person look foolish or incompetent. Also may include hate-ism by deliberately pointing at a victim based on age, gender, race or sexual orientation are instances of profiling because of an “ism.”

Many examples include blaming others rather than accepting responsibility; checking email or texting during a meeting; using email to send a difficult message to avoid facing the person, which may be misunderstood and misinterpreted; not saying “please” or “thank you”; not listening and talking over or down to someone.
The cost of incivility is high. It is not only about money! There is research to support impacts on performance through lost time and absenteeism, lack of creativity, less helpfulness and less likely to assist another employee. The impact of teams is on the level of energy, emotional engagement, and performance. The conduct reaches into our physical health; impacts our customers and commitment to the organization and willingness of employees to stay with their companies. All affecting the bottom line of productivity.
So how do we address these issues? I would like to explore some recommendations for your consideration. It starts with us as individuals. Managing ourselves. How? If you throw a ball at the wall…it comes back. It works with people too. If you are, mean…it comes back! People will be mean to you.

How can you be kind and patient all the time when life is so stressful—and just plain hard? You do it by embracing civility! Civility requires self-awareness.

With self-awareness you can:
 Control your attitude
 Manage your moods
 Choose behaviours that do not negatively impact your life or disrupt those around you

Can you…
 Feel and express annoyance, irritation or frustration without hurting others— and then let it go?
 Accept and even appreciate that other people have needs and opinions which are different from your own?
 Encourage and enjoy the successes of others?
 Recognize when someone else feels irritated, upset or frustrated and keep yourself from reacting impulsively in response?

As leaders, we need to model. The Russian novelist, Leo Tolstoy wrote: “Everyone thinks of changing the world, but no one thinks of changing themselves.” Employees look to leaders for guidance and someone to aspire too. What are they seeing? Watch your language and put away your smartphones when engaging with your staff. Be mindful of the perils of emails and other electronic communication. Pick up the phone or set up a face to face meeting instead. Take immediate and corrective action when warranted. Rude and disrespectful behaviours emerge quickly and sometimes without warning. As the leader, you need to respond at the moment. By delaying a reaction or action, it sends out mixed messages to the offender as well as the entire team. Take all complaints seriously, realizing that coming forward by the individual is difficult, and they need to know they are supported.

We attend seminars and workshop on harassment prevention, Creating Respectful Workplace and Violence in the Workplace. I have put together a workshop on “How Embracing Civility can Create More Satisfying Work Environments”. The agenda is:
• Why Civility Matters
• It Starts with You!
• Do What You Say and Say What You Mean
• Good Fences Make Great Neighbours
• Working in the Salad Bowl
• Eliminate Gossip and Bullying
• You Can’t Always Get What You Want
• Taking It to the Extreme
• Paving the Path to Civility

Contact Monika Jensen, Principal, Aviary Group, at [email protected]  if you are interested.

Share

Changing Workplaces Review – Interim Report Issued

Changing Workplaces Review – Interim Report Issued

July 27, 2016 By: Paul E. Broad, Craig S. Rix

FTR Now

Changing Workplaces Review – Interim Report Issued

Date: July 27, 2016

Since May 2015, two government-appointed Special Advisors – Mr. Justice John Murray and Mr. Michael Mitchell – have been undertaking the Changing Workplaces Review (Review) to consider the changing nature of the workplace, the causes behind those changes, and whether the Labour Relations Act, 1995 (LRA) and the Employment Standards Act, 2000 (ESA) need to be amended to meet challenges created by the changes.

As reported in our FTR Now of May 15, 2015, Ontario Begins Consultations on Labour and Employment Reform, the Special Advisors were tasked with considering non-standard working relationships, the expanding service sector, globalization and trade liberalization, technological change and workplace diversity.

Earlier today, the Special Advisors released their long-awaited Interim Report. In this FTR Now we discuss some key issues identified by the Special Advisors. We will be providing further updates on the Interim Report by next week.

The Interim Report is a wide-ranging document, over 300 pages in length. After reiterating the context of the Review mandate, the Special Advisors emphasize that their recommendations will focus primarily on vulnerable workers engaged in precarious employment. The Interim Report does not generally identify specific recommendations. Rather, it serves several purposes:

  • identify the substantive areas of the LRA and ESA that are being considered as part of the Review;
  • outline the current state of the law and employee entitlements in each of those areas, drawing on context from other jurisdictions within Canada, as well as differing approaches in foreign jurisdictions, including the United States, the European Union and Australia;
  • summarize the submissions made to the Special Advisors, identifying areas where submissions may have been lacking;
  • identify the key options for recommendations that the Special Advisors are considering; and
  • seek further input on those key options.

The range of options being considered by the Special Advisors is very broad and potentially far-reaching.

Labour Relations Act, 1995

A wide range of options are canvassed that have the potential to fundamentally alter the current labour relations landscape.

One option canvassed is a return to a card-based certification process. This would mean the end to the current fast vote, secret ballot process (in all sectors save for the construction sector) and the return to a process that hasn’t existed in Ontario since 1995. Under a card-based certification process, an employer could find itself unionized if a defined percentage of employees in the union’s proposed bargaining unit signed a membership card.

Beyond the Interim Report’s analysis of the certification process, many other options are explored that were once a part of Ontario’s labour relations laws in the 70s and 80s:

  • requiring employers to provide an organizing union with a list of their employees before an application for certification is filed thus enabling the union’s organizing efforts;
  • expanding the basis upon which the Ontario Labour Relations Board could issue a penalty certification in the event of a breach of the LRA during a union organizing campaign;
  • reintroducing the Bob Rae government’s Bill 40 notion of automatic first contract interest arbitration; and
  • prohibiting an employer’s current ability to utilize replacement workers in the face of a strike.

Employment Standards Act, 2000

With respect to the ESA, the Special Advisors are considering options related not only to the substantive employment standards, but also the ESA’s scope of application and how it is enforced. Some key issues identified by the Special Advisors include:

  • whether the ESA should be extended to independent contractors and dependent contractors;
  • an expanded scope of who is an employer – for example, making franchisors liable for ESA violations of their franchisees, or implementing an expanded joint employer test;
  • a recommendation to review the ESA’s various exemptions, with an anticipated recommendation that certain hours of work and overtime exemptions be narrowed or eliminated (e.g. IT professionals, and managers and supervisors);
  • whether changes should be made to the ESA’s leave provisions, with a special focus on Personal Emergency Leave, and whether there should be an introduction of paid sick days; and
  • further amendments to the regulation of Temporary Help Agencies, including potential restrictions on the use of assignment employees and potential increased entitlements for assignment employees.

Next Steps

As noted above, one of the purposes of the Interim Report is to solicit further input on the key options identified by the Special Advisors before a final decision is reached on the recommendations. The government has announced two (2) separate timelines for making submissions:

  • August 31, 2016 for submissions on the Personal Emergency Leave options canvassed in the Interim Report; and
  • October 14, 2016 for submissions on all other options on all other topics canvassed in the Interim Report.

We are in the process of reviewing the Interim Report in detail, and will be providing further updates by next week, including how submissions may be made to the Special Advisors. In the meantime, if you have any questions related to the Interim Report, please contact your regular Hicks Morley lawyer.

Published with permission of and Thanks to Hicks Morley.

Share

Why Organizations & Businesses Need An Acceptable Use Policy

Does your business have an acceptable use policy regarding office use of the Internet? More importantly, is your acceptable use policy (AUP) enforced, or is it a document that’s only seen upon the point-of-hire? Learn exactly why your company needs an AUP, even if you are just a small company with a handful of employees.

Download a sample “acceptable use policy” – Click Here.

What’s In an Acceptable Use Policy?

Acceptable Use PolicyAcceptable use policies outline when and how employees can use the business’ Internet access. Typically, these policies cover:

  • Purpose – The reason for the policy, from a business perspective.
  • General expectations – Here, place any general rules for Internet usage.
  • Acceptable use – This explains how employees are allowed to use the Internet.
  • Unacceptable use – This specifically calls out unacceptable uses of company Internet. It may focus on banning specific sites (i.e. social media) or on prohibiting behaviors.
  • Confidentiality and disclosure – Any business policies around confidentiality and disclosure of data go here.
  • Network use – Here place policies regarding user accounts, general accounts, and network boundaries.
  • Enforcement – The “teeth” of the AUP, this section lists when and how the enterprise will monitor network usage and punish violators.

Now that you have a refresher on what goes into an acceptable use policy, review why it is critical that you have one – even if you are a small business.

Why Small Business Need an AUP

The acceptable use policy protects your business from any legal actions, while clearly communicating to employees your expectations regarding their behavior.

It is far better to lay out acceptable usage and get employees on board early than to have to backpedal if something goes wrong. In a worst-case scenario, a staff member could introduce malware into the office environment visiting a site that would have been blacklisted – if you had an AUP in place.

An AUP may limit your liability around illegal file sharing. If your staff download ebooks, music, or video files from an illegal site, your business may be legally liable for this behavior. Can you afford to fight a file-sharing lawsuit?

Even if all downloaded media files are legal, your business may be paying to back up items that are personal in use. Additionally, if users are downloading large files, this hogs bandwidth. It may prevent staff from completing needed tasks quickly, by reducing the bandwidth available for legitimate uses. From a cost perspective, it’s worth the time to lay out policies regarding storage of file downloads.

It may seem obvious to block staff access to online gaming sites or pornography sites. Yet legitimate sites – YouTube, for one – can pose a big problem by hogging bandwidth and distracting staff from their duties.

Consider carefully which websites to specifically block. Aim to strike a balance between allowing staff access to information needed to do their job and enjoy a happy work culture and maintaining office productivity.

The best policies are not so specific that employees can easily loop around prohibitions, yet not so vague as to block or allow almost anything. Work with IT to create an AUP that is not only effective at reducing unwanted behavior and limiting your risk but can be enforced. To increase buy-in, consider sharing draft policies with staff and asking their opinion.

Once the AUP is final, distribute copies at an information session, answer any questions, and get staff signatures.

OnServe is the trusted choice for small businesses who wish to get ahead of the curve regarding IT tips and tricks. To learn more, please contact us at (613) 634-8125 or send an email to [email protected] for more information.

  • Article by OnSerVe/ Photo by ThinkStock photos

 

Share

7 Tips for a Secure Holiday Municipal Event

Holiday Gift Wrapping

7 Tips for a Secure Holiday Municipal Event

Your festivity special event plan is likely all neatly wrapped with a bow and all of the excited community participants are looking forward to your parades, concerts and fireworks extravaganzas that are taking place over the holidays. Let’s make sure we check our list twice for all those naughty security gaps and risk hazards and offer some nice solutions that can mitigate things from becoming unwrapped.

7 Seasonal Event: Security and Risk Planning Stocking Stuffers

  1. Any temporary fencing or barriers that will be used for access control or crowd management are resistant to climbing, being easily detached and moved and especially in inclement weather, won’t tip or be blown over by high winds.
  2. Areas where crowds will gather have been checked for uneven ground, trip and slip hazards and are reasonably remedied.  This is important where the attendee’s attention will not primarily be at their footing but at the surrounding event festivities.
  3. If you are using either a contract security firm or your in-house security team for your event, ensure they have valid CPR and First Aid training and all have their current Private Security and Investigative Services Provincial licences.
  4. Where there is alcohol service, ensure there is a gate keeper at entry and exit points so alcohol is not removed or brought into the licenced area.
  5. In advance of any nighttime outdoor events, inspect the lighting and ensure any burnt out, malfunctioning or off-timer lights are 100% functional.  Also ensure that overlapping light coverage is consistent, especially at pedestrian crossing areas and areas where the grading changes.
  6. Where you have Closed Circuit Video (CCV) systems, be mindful of where you hang any holiday decorations.  Don’t block the field of view (FOV) of your cameras.
  7. If you are collecting cash in non-traditional open space environments, ensure there are always two employees present and train those employees on how to respond to a robbery situation.

These simple and practical tips will help with heightening the security of your hosted events and aid in mitigating common risk exposures that can dampen the holidays for your residents, visitors, businesses and employees.

If you have any questions or comments please feel free to contact us at [email protected]    

Happy Holidays

Patrick Ogilvie,

www.writerightrisk.com

Share