Ontario court rejects appeal in copyright infringement action over route maps

The Court of Appeal for Ontario dismissed an appeal of an individual claiming that the Toronto Transit Commission had infringed his copyright when it allegedly adopted the route maps he had made in a bus and subway guide.

In Walcott v. Toronto Transit Commission, 2021 ONCA 358, the appellant proposed in 1994 to make a bus and subway route map guide for the respondent Toronto Transit Commission. The respondent commission declined, stating that such a guide was already available to its passengers.

In 1996, the appellant reached out to the commission to claim that the route maps he made appeared in the Yellow Pages Directory. The commission replied that it did not base the route maps on the appellant’s proposed guide and it had generated the maps internally.

The appellant received a certificate of registration for a guide from the United States Copyright Office in August 1996, then initiated an action against the respondent for copyright infringement based on the registration certificate, claiming copyright in the publication of all transit routes and schedules in Canada and the U.S.

The Superior Court of Justice of Ontario granted summary judgment favouring the respondent and dismissed the appellant’s copyright infringement action with costs of $25,000.

The motion judge determined that there was no genuine issue requiring a trial. The judge held that the appellant failed to produce a guide as evidentiary basis to support the copyright claim and that the route maps made by the appellant lacked originality because they were based on public information about the commission’s transit routes. There was no copyright in ideas, but only in the form of expression of such ideas, the motion judge said.

Even if the appellant’s route maps constituted an original form of expression, there was no evidence that the commission had used or adopted such maps. Even if the appellant had copyright covering the expression of the route maps, the scope of this copyright would not prevent the commission from making its maps, the motion judge also found.

The motion judge then rejected the appellant’s request to add the respondent in the action as a conspirator with the federal government concerning the appellant’s claim alleging assault, slander and denial of his rights, benefits and privileges of freedom.

The Court of Appeal for Ontario dismissed the appeal with costs of $8,000, finding no error in the motion judge’s findings about copyright law, the evidentiary record or the lack of a genuine issue requiring a trial.

The appellate court noted that the appellant failed to provide the guide he had prepared to the motion judge and offered only route maps, which were in the form of lists of transit stops along bus routes, and a document, which provided a map identifying businesses along the street.

On the other hand, the commission provided uncontested evidence that, for many years and in numerous formats, it had published route maps showing its transit lines and not including information regarding the businesses along the routes, unlike the appellant’s document, the appellate court said.