On September 28, 2017, the Ontario Court of Appeal (Court) released its decision in Keatley Surveying Ltd v Teranet Inc, 2017 ONCA 748, upholding the decision of the Ontario Superior Court of Justice (ONSC) dismissing a class action lawsuit against Teranet Inc, which was previously reported in the E-TIPS® Newsletter.

The primary issue addressed by the Court was whether Teranet’s copying and selling of survey documents infringed the copyright of surveyors who created and registered the documents within Ontario’s electronic land registry system. In brief, the ONSC held that copyright in the plans of survey was transferred to the Crown through a series of provincial statues dealing with land registry and, therefore, copyright in the survey documents could not be infringed since it no longer lay with the surveyors.

On appeal, both parties moved for summary judgment. Keatley Surveying argued both that the ONSC erred in its findings and that the provincial legislation transferring copyright to the Crown was beyond the power of the government (“ultra vires”). Teranet argued that the action was properly dismissed and that there was no merit to the vires argument raised.

The Court decided the issue based to the following question:

Does the copyright in plans of survey belong to 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?

The Court found that it did, but for reasons that differ from those of the ONSC. The Court found that section 12 of the Copyright Act vests copyright in the survey documents directly with the Crown by virtue of their publication under the “direction or control” of the Crown. The surveyors never owned copyright in the survey documents for the Crown to infringe. Furthermore, since copyright vested directly with the Crown through the Copyright Act and not provincial legislation, the vires issue put forth could not possibly arise.

Summary By: Jae Morris

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