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.
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:
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.
