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January 22, 2013

CERTIFICATION

Keatley Surveying Ltd. v. Teranet Inc., 2012 ONSC 7120<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc7120/2012onsc7120.html>: Plaintiff's motion for certification dismissed in proposed land surveyors' copyright class action. Madam Justice Horkins found that the plaintiff had properly pleaded the elements of the cause of action for infringement of copyright - the only cause of action being advanced in the proceeding. She rejected the defendant's argument that it was plain and obvious that the cause of action would failed because copyright in the plans of survey vested in the Crown by virtue of s.12 of the Copyright Act. Specifically, she noted that the meaning of s.12 of the Copyright Act and its application to the surveyors and their plans of survey was a novel question that had not been determined by our courts, and that novel questions are law could not be decided under s.5(1)(a) of the Ontario Class Proceedings Act, 1992.

However, Justice Horkins went on to find that the other requirements of s.5(1) were not met. To begin with, there was no evidence of a class of two or more persons who "have a complaint that they wish to have determined in the class proceeding". Justice Horkins did not accept the plaintiff's evidence about the number of surveyors in Ontario, the affidavit evidence of another potential class member, evidence pointing to the involvement of the Land Surveyors Copyright Enforcement Group, or evidence from the defendant's motion materials discussing the issue of copyright in plans of survey as sufficient support for the existence of a class. She also found that the class definition was merits-based in that it required a determination of the issues of copyright ownership and consent to use of plans.

Further, Justice Horkins rejected all but one of the Plaintiff's proposed common issues and, having done so, found that a class proceeding was not a preferable procedure because there was no single common issue that would significantly advance the litigation for the class. Further, not a single class member other than the plaintiff had indicated that it wished to pursue a claim for copyright infringement against the defendant. Concerns about behavior modification did not exist because, in her Honor's view, the provision of electronic access to publicly available documents on behalf of the government pursuant to a statutory obligation was not behavior that required modifying.

Finally, Justice Horkins concluded that the requirement of s.5(1)(e) was not met as there was a potential conflict between the interests of the proposed representative plaintiff and the interests of the class, and because the proposed litigation plan was deficient. The writer was co-counsel for the plaintiff. An appeal has been launched.

Ward Branch, Partner Branch MacMaster LLP 1410 - 777 Hornby Street Vancouver, B.C. V6Z 1S4 P: 604.654.2966 | F: 604.684.3429 Web: www.branchmacmaster.com/ward-branch<http://www.branchmacmaster.com/ward-branch> Twitter: http://twitter.com/#!/wbranch99

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