SCC to hear appeal in Teranet class action brought by land surveyors

The Supreme Court of Canada has granted leave to an appeal of a summary judgment dismissing a class action brought by land surveyors against Teranet, the body that manages Ontario’s electronic land registry system for the Ontario government.

A decision by the top court could have implications for copyright law and the digitization of documents in public-private partnerships across the country.

Keatley Surveying brought a proposed class action in 2007 on behalf of all land surveyors in Ontario. Keatley claimed that Teranet infringed surveyors’ copyright by digitizing, storing and copying the plans of survey created by the surveyors and registered or deposited in Ontario’s Electronic Land Registration System.

The class proceeding judge declined to certify the action as a class proceeding in 2012, but the Divisional Court, based on a revised list of proposed common issues, reversed that decision in 2014 and certified the action as a class proceeding.

Both Keatley and Teranet then moved for summary judgment and the motion judge found in Teranet’s favour in 2016 and dismissed the action, finding that copyright in the plans of survey registered or deposited under the land registration system belonged to the province. This decision was upheld at the Ontario Court of Appeal in 2017, which confirmed that making copies of a work available to the public through the Electronic Land Registration System constitutes publishing under Canada’s Copyright Act.

Teranet also renewed arguments made about other common issues on cross-appeal, but Justice Doherty, writing for province’s top court, stated that “I would not address the merits of the cross-appeal and would dismiss that appeal as moot in light of my disposition of the main appeal.”

The SCC has now granted Keatley’s application for leave to appeal and Teranet’s application for leave to cross-appeal.

Although the Ontario Court of Appeal only ruled on whether the copyright of the plans of survey belong to the province, a Supreme Court decision could clarify other issues that were brought forth by the parties in the dispute.

The common issues that the Divisional Court originally found were suitable for certification were:

1. Does copyright under the Copyright Act subsist in the Plans of Survey?
2. Does the copyright in the Plans of Survey belong to the Province of Ontario pursuant to section 12 of the Copyright Act as a result of the registration and/or deposit of those Plans of Survey in the Ontario Land Registry Office?
3. Does the signed declaration affixed to the Plan of Survey at the time of registration and/or deposit constitute a signed written assignment of copyright to the Province of Ontario pursuant to subsection 13(4) of the Copyright Act?
4. Are Class Members deemed to have consented to any or all of the Alleged Uses by the Defendant of Plans of Survey as a result of the registration and/or deposit of those Plans of Survey to the Ontario Land Registry Office?
5. Did the Defendant make any or all of the Alleged Uses of Plans of Survey? If so, which ones?
6. If the answers to common issues two and three are no, do any or all of the alleged uses constitute:

a.  uses that by the Copyright Act only the owner of the copyright has the right to do?

b.  uses that are listed in paragraphs 27(2)(a) to (e) of the Copyright Act and that the Defendants’ knew or should have known infringes copyright? and if so, which ones?

7. Does the Defendant have a defence to copyright infringement based on public policy that would justify the Defendant making the Alleged Uses of Plans of Survey?

Agostino Russo, chief legal officer and corporate secretary at Teranet, says, “We believe the Ontario Court of Appeal reached the correct decision dismissing the action. We believe the Supreme Court should dismiss the appeal and reach the same conclusion.”

The Ministry of the Attorney General did not wish to provide comment to Legal Feeds because the matter is before the court.

Counsel for Keatley could not be reached for comment.