Executive Summary: Key Legal and Evidentiary Issues

• AGI alleged OPI misappropriated its proprietary BinManager source code through former employee Timothy Penrod who copied the code to a USB drive upon leaving AGI in 2022

• Penrod admitted accessing the source code during his OPI employment but claimed it was only to view non-proprietary server configuration information

• The Alberta Action was stayed pending resolution of the Kansas Action, with an exception carved out for AGI to seek interlocutory injunctive relief

• Applying the RJR-MacDonald tripartite test, the Court found a serious issue to be tried regarding breach of confidence but insufficient evidence of irreparable harm

• AGI failed to provide financial data or market share evidence to support claims of harm in Canada, with conflicting evidence about whether BinManager was even actively sold in Canada

• The preservation application seeking forensic digital copies was declined as it fell outside the limited exception to the stay order

Background and the parties involved

AGI SureTrack, LLC is a Missouri Limited Company with its principal place of business in Lenexa, Kansas, and is a subsidiary of Ag Growth International Inc., a publicly traded Canadian company with headquarters in Winnipeg. OPISystems Inc. is an Alberta company that conducts business in Canada, the United States of America and elsewhere. Both companies are competitors and sell grain management systems. AGI sells the BinManager grain management system while OPI sells the OPI Blue grain management system and has recently launched a new generation of grain management system called EPIQ. These systems are intended for use in the agricultural sector, installed in grain bins to monitor parameters including temperature and moisture so that farmers and growers can ensure conditions are optimal for the grains being stored. The software on which these systems operate is complex, based on source code written by software developers employed by each company.

The employment dispute and source code allegations

Beginning in around 2022, several AGI personnel, some with knowledge of the AGI software and source code, left AGI and ultimately were hired by OPI. One of these employees is Timothy Penrod, a software engineer who was employed with AGI or its predecessors since 2013. Penrod resigned from AGI on February 21, 2022. On February 28, 2022, just prior to his last day, Penrod saved a copy of the AGI BinManager source code to a USB drive and took the USB drive home. Penrod began doing contract work for an unrelated entity, and it was not until November 2022 that he began working with OPI as a contractor. By March 2023, Penrod became an employee of OPI as a software engineer and began working on the OPI grain management system. In late 2022, Penrod purchased a personal laptop and copied the source code to that laptop. In the summer of 2023, Penrod accessed the source code. He says it was to review information relating to a server configuration issue, which he says was non-proprietary information in any event.

The multi-jurisdictional litigation

AGI has commenced actions in Missouri, Kansas and Alberta alleging that OPI, and various former AGI personnel now employed by OPI, have used AGI's highly confidential trade secrets, including the AGI source code, to benefit OPI. Each of the three Actions name somewhat different Defendants, and include somewhat different causes of action, but they all arise from the same general factual matrix. The Kansas Action, which at the time of the hearing had been significantly advanced, involves breach of contract claims against former employees Tackett and Weiss due to breaches of their employment agreements, including breach of their non-competition and non-solicitation agreements with AGI, as well as claims under the US Defend Trade Secrets Act and the Kansas Uniform Trade Secrets Act. There are exclusive jurisdiction clauses in the agreements with Tackett and Weiss that give Kansas exclusive jurisdiction over the contractual disputes related to them. The Alberta Action names only OPI as Defendant and advances causes of action for conspiracy, breach of confidence through knowing receipt of confidential information, and unjust enrichment. It seeks redress for harm to AGI in Alberta and Canada.

The stay of the Alberta Action

In October 2025, Justice D.J. Reed considered OPI's application to dismiss or stay the Alberta Action. AGI conceded that the Court has jurisdiction simpliciter because OPI carries on business in Alberta. However, the Court noted there was significant overlap, particularly between the witnesses, facts and evidence between the Alberta Action and the Kansas and Missouri Actions. The Court found that Kansas is not the clearly more appropriate forum for determining the claims AGI has brought against OPI in Alberta, noting that the claims in this Action are not before the Court in Kansas and are claims arising by operation of Canadian law, against a Canadian defendant, ultimately to seek compensation and relief related to the impact AGI alleges against OPI in Canada. However, recognizing concerns about duplicative discovery and issues regarding findings of fact that may overlap in the two jurisdictions, the Court stayed the Alberta Action pending final judgment in the Kansas Action or such other disposition such as resolution, withdrawal, delay, or other similar issues. This stay was subject to a limited exception that AGI is permitted and has leave to bring an application for pre-trial injunctive relief against OPI.

AGI's application for interlocutory injunction

AGI sought an order restraining OPI from further copying, permitting access to, disclosing to any individual or entity, or otherwise failing to properly secure the confidentiality of AGI's source code; allowing any individual or entity to review, study, copy, or otherwise access the AGI source code in any way; and selling products or services, or providing access to software, that use or are based upon the AGI source code and which compete with BinManager, including at least OPI EPIQ. AGI also requested an order directing OPI to permit AGI to make forensic digital copies of certain digital records. The application was hotly contested, with both parties filing numerous affidavits which contain some conflicting information.

Analysis of the breach of confidence claim

The parties agreed that the applicable test for whether an interlocutory injunction is granted is the tripartite test established in RJR-MacDonald Inc v Canada (Attorney General), which requires AGI to demonstrate that there is a serious issue to be tried, irreparable harm will result if the injunction is not granted, and the balance of convenience favours granting the injunction. On the first branch, the Court was satisfied that the information in question, primarily the source code, was confidential. This was supported by the fact that AGI required certain employees, including Penrod and Weiss, to sign nondisclosure agreements or confidentiality, noncompetition and nonsolicitation agreements; the source code was not publicly available information and OPI and the former AGI employees were required to reverse engineer components of the BinManager system in order to develop the competing OPI product; and Weiss' evidence that he was aware that OPI considered Penrod's knowledge of the AGI BinManager system as being "worth its weight in gold." The Court found there were certain gaps in Penrod's evidence, including that he does not explain why he felt the need to save the source code to his laptop around the time he started working for OPI, or at all, and that he does not say that he deleted it from his laptop after sending the USB drive to his lawyers.

Failure to establish irreparable harm

The Court found that unlike the standard used to establish whether there is a serious issue to be tried, the standard to be met to establish irreparable harm is a high one, requiring clear and compelling evidence. While AGI argued that the loss of competitive advantage gives rise to a presumption of irreparable harm because it is impossible to know the extent to which the opposing party is using such information, the Court chose to rely upon Alberta cases which clearly require at least some evidence to establish irreparable harm. AGI had not provided any evidence about its exact market share in Canada or how much of that market share is the result of sales of BinManager. While OPI explained that approximately 35% of its global business relates to Canadian sales, and of that portion, approximately 50% of those sales is derived from OPI Blue and EPIQ, there was no similar information from AGI. Given the dispute between the parties about the degree to which AGI's revenue arises from Canadian sales of BinManager, the Court expected to see some evidence establishing that fact but found only a bald assertion that BinManager is sold in Canada and that subscription revenue is significant. Given the conflict in the evidence about whether AGI even has a market share in Canada, the Court concluded that AGI had not established irreparable harm.

Balance of convenience and preservation application

Notwithstanding that AGI's application would fail for not establishing irreparable harm, the Court briefly considered where the balance of convenience lies and found it would have favoured OPI. OPI argued that what AGI seeks is to prohibit OPI's sales of OPI EPIQ and presumably also OPI Blue, and that such an order would "cripple" OPI's business in Canada when those products combine for approximately 50% of OPI's sales and the effect of an injunction would be to erase 90% of OPI's Canadian sales in total when one considers the cumulative effects. The Court also declined the preservation application, finding it had concerns that the preservation application represents a collateral attack on the stay order. Justice Reed was clear that the only exception to the stay of the Alberta Action was AGI's injunction application, with no exception carved out for disclosure. The Court found the proper route for AGI to obtain a preservation order, given the state of advancement of the US Actions and the stay of the Alberta Action, is to seek it within one of the US Actions.

Ruling and outcome

AGI's application was dismissed by Justice L.K. Harris on January 27, 2026. OPI, as the successful party, is entitled to costs of the application, with the parties permitted to make submissions in writing within 30 days should they be unable to agree on costs. While the Court found AGI established a serious issue to be tried on the breach of confidence claim, the failure to provide sufficient evidence of irreparable harm proved fatal to the application. The Alberta Action remains stayed pending resolution of the Kansas Action. No specific monetary amount was determined as this was an interlocutory application rather than a final determination on the merits.