Keatley Surveying Ltd. v. Teranet Inc., (2015) 331 O.A.C. 324 (CA)

• Judge: Weiler, Sharpe and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 07, 2015
• Jurisdiction: Ontario
• Citations: (2015), 331 O.A.C. 324 (CA);2015 ONCA 248

Keatley Surveying Ltd. v. Teranet Inc. (2015), 331 O.A.C. 324 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.010

Keatley Surveying Ltd. (plaintiff/respondent) v. Teranet Inc. (defendant/appellant)

(C59341; 2015 ONCA 248)

Indexed As: Keatley Surveying Ltd. v. Teranet Inc.

Ontario Court of Appeal

Weiler, Sharpe and Blair, JJ.A.

April 14, 2015.

Summary:

Teranet Inc. managed Ontario's electronic land registry system. It made electronic copies of registered plans of survey, and sold them. Keatley Surveying Ltd. sought certification of this action as a class proceeding on behalf of all of the land surveyors in private practice in Ontario whose survey documents appeared in digital format in Teranet's database. The action alleged that Teranet's creation, maintenance and operation of its database constituted copyright infringement.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 7120, refused to certify the action. While the pleadings disclosed a proper cause of action, Keatley had failed to satisfy the other criteria for certification: Keatley had failed to show an identifiable class; only one proposed common issue was potentially certifiable; a class proceeding was not the preferable procedure; Keatley was not representative of the proposed class; and the litigation plan was not workable. Keatley appealed and significantly revised its certification request. Teranet took issue with Keatley's recasting of the case.

The Ontario Divisional Court, in a decision reported at (2014), 319 O.A.C. 219, certified the action on the basis of a revised class definition and revised common issues, upon Keatley abandoning its claim for an injunction. Access to justice considerations militated in favour of granting Keatley the right to recast its case on appeal. Teranet appealed, raising four issues: whether the Divisional Court erred: (1) by considering revised proposals for certification; (2) by granting certification on the basis of the revised proposals; (3) in holding that it was not necessary that there be anyone other than the plaintiff who wished to pursue its claims as a class action; and (4) in certifying the proceeding without requiring the plaintiff to propose a workable litigation plan.

The Ontario Court of Appeal dismissed the appeal.

Copyright - Topic 1005

Works subject to copyright - General - Artistic works (incl. plans of survey) - [See second and third Practice - Topic 209.9 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - [See second and third Practice - Topic 209.9 ].

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The appellant argued that the Divisional Court erred by considering revised proposals for certification that differed from those before the class proceedings judge - The Ontario Court of Appeal rejected the argument - (1) The recast proposed class definition did not fundamentally change the nature of the case in a way that would prejudice the appellant - The proposed class remained essentially the same - The appellant was not put at a procedural disadvantage, and neither required nor sought an adjournment - The change did not cause prejudice arising from a lack of evidence or a proper record - Any prejudice from having to deal with the new class definition was dealt with by the Divisional Court in its costs order - (2) The revised common issues neither expanded nor altered the scope of the litigation - The appellant had prior notice of the revisions and a full opportunity to make submissions before the Divisional Court - The revisions rested on the existing record and did not call for fresh evidence - The changes did not cause the appellant any prejudice or disadvantage that could not be compensated in costs - (3) The Court agreed with and adopted what the Divisional Court stated with respect to the permissible limits on recasting certification motions on appeal - See paragraphs 21 to 47.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The underlying cause of action was for breach of copyright (plans of survey) - The class proceedings judge refused to certify the action - On appeal to the Divisional Court, the action was certified on the basis of the revised proposals as to identifiable class, common issues, preferable procedure, and representative plaintiff - The Ontario Court of Appeal dismissed the appeal - (1) The revised class definition was not merits-based; i.e., it did not rest upon or require a determination of copyright ownership - (2) Resolution of the revised common issues would significantly advance the litigation - The Divisional Court's assessment of the proposed common issues was entirely consistent with decisions dealing with certification in other copyright cases - (3) The preferable procedure requirement was satisfied - The common issues identified significant elements of the litigation that, if resolved in the defendant's favour, would be fatal to the claim - If the defendant did not succeed on the common issues, the remaining issues requiring individual trials would be fewer and simpler - (4) While the representative plaintiff (Keatley) did not rely on the defendant, the situation of other surveyors was not so different or distinct so as to give rise to a conflict or make Keatley unsuitable to represent their interests - See paragraphs 48 to 68.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The plaintiff sought certification of this action as a class proceeding on behalf of all of the land surveyors in private practice in Ontario whose survey documents appeared in digital format in the defendant's database - The action alleged that the defendant's creation, maintenance and operation of its database constituted copyright infringement - The Ontario Court of Appeal held that the Divisional Court did not err in rejecting the proposition that under s. 5(1)(b) of the Class Proceedings Act, it was necessary to show that there were class members, other than the plaintiff, who wished to pursue claims as a class action - "It is, of course, incumbent on the proposed representative plaintiff to show that there are two or more individuals who have the same claim as the representative plaintiff to advance. Ordinarily, the existence of more than one claim will be apparent from the very nature of the claim being advanced. This case falls into that category. If the representative plaintiff has claim for breach of copyright, it is apparent that other surveyors will have a like claim." - See paragraph 70.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The Ontario Court of Appeal held that the Divisional Court did not err in rejecting the proposition that under s. 5(1)(b) of the Class Proceedings Act, it was necessary to show that there were class members, other than the plaintiff, who wished to pursue claims as a class action - "[A] distinction must be drawn between the existence of multiple claims and the subjective wishes or intentions of individual class members to assert a claim. It is in the very nature of class actions that many, if not most, individual class members lack the motivation or the will to commence proceedings. The access to justice and behavior modification goals of class proceedings will often depend upon a representative plaintiff taking the initiative in circumstances where other members of the class would be ignorant of their loss or acquiesce because of disinterest, lack of resources or fear of an adverse costs award. If multiple claims exist, the representative plaintiff does not have to conduct a referendum to determine how many class members want to sue. Ontario's class action regime features an opt-out procedure which affords class members who do not wish to have their claims advanced the right to disassociate themselves from the action. There is no corresponding requirement to establish a willing class." - See paragraph 72.

Practice - Topic 8825.4

Appeals - General principles - Duty of appeal court from decision of motions judge on class action certification motion - On appeal to the Divisional Court, the action was certified on the basis of a revised class definition and revised common issues - The Ontario Court of Appeal stated that "implicit in the exercise of appellate jurisdiction to hear an appeal from a denial of certification are limits on the extent to which a party can recast the case it presented at first instance. ... [A]bsent properly admitted fresh evidence on appeal or a material change in the law, an appellate court will ordinarily only intervene where there is an identifiable, reviewable error by the court of first instance. These guiding principles do not, however, place an appellate court in a straightjacket that would frustrate the interests of justice. It has been judicially recognized that given their very nature, class proceedings evolve as they work their way through the court system. ... The case law from this and other appellate courts ... establishes that there must be some latitude for consideration of issues not raised at first instance provided that the other party is afforded procedural fairness." - In this case, the reformulation of the class definition and common issues did not exceed the type of adjustment that was contemplated by the case law, and the defendant was not prejudiced - See paragraphs 22 to 24.

Cases Noticed:

Halvorson v. Medical Services Commission (B.C.) et al. (2010), 288 B.C.A.C. 167; 488 W.A.C. 167; 4 B.C.L.R.(5th) 292; 2010 BCCA 267, refd to. [para. 23].

Markson v. MBNA Canada Bank (2007), 224 O.A.C. 71; 85 O.R.(3d) 321; 2007 ONCA 334, leave to appeal refused (2007), 383 N.R. 381; 248 O.A.C. 396 (S.C.C.), refd to. [para. 24].

Williams v. Mutual Life Assurance Co. of Canada et al. (2003), 170 O.A.C. 165; 226 D.L.R.(4th) 112 (C.A.), refd to. [para. 24].

Kumar v. Mutual Life Assurance Co. of Canada - see Williams v. Mutual Life Assurance Co. of Canada et al.

McCracken v. Canadian National Railway Co. (2012), 293 O.A.C. 274; 111 O.R.(3d) 745; 2012 ONCA 445, refd to. [para. 41].

Pearson v. Inco Ltd. et al. (2005), 205 O.A.C. 30; 78 O.R.(3d) 641 (C.A.), leave to appeal denied (2006), 357 N.R. 394 (S.C.C.), refd to. [para. 44].

Good v. Toronto Police Services Bd. (2014), 321 O.A.C. 358; 2014 ONSC 4583 (Div. Ct.), refd to. [para. 46].

Robertson v. Thomson Corp. et al. (1999), 86 O.T.C. 226; 43 O.R.(3d) 161 (Gen. Div.), refd to. [para. 55].

Waldman v. Thomson Reuters Corp. et al., [2012] O.T.C. Uned. 1138; 22 C.P.C.(7th) 33; 2012 ONSC 1138, leave to appeal denied [2012] O.A.C. Uned. 371; 2012 ONSC 3436 (Div. Ct.), refd to. [para. 55].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), leave to appeal refused (2005), 344 N.R. 192; 207 O.A.C. 400 (S.C.C.), refd to. [para. 56].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 64].

Lambert et al. v. Guidant Corp. et al., [2009] O.T.C. Uned. A37; 72 C.P.C.(6th) 120 (Sup. Ct.), leave to appeal denied (2009), 82 C.P.C.(6th) 367 (Div. Ct.), refd to. [para. 69].

Singer v. Schering-Plough Canada Inc., [2010] O.T.C. Uned. 42; 87 C.P.C.(6th) 276; 2010 ONSC 42, refd to. [para. 69].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 71].

Lau et al. v. Bayview Landmark Inc. et al., [1999] O.T.C. 220; 40 C.P.C.(4th) 301 (Sup. Ct.), refd to. [para. 71].

Taub v. Manufacturers Life Insurance Co. (1998), 40 O.R.(3d) 379 (Gen. Div.), affd. (1999) 42 O.R.(3d) 576 (Div. Ct.), refd to. [para. 71].

Sun-Rype Products Ltd. et al. v. Archer Daniels Midland Co. et al., [2013] 3 S.C.R. 545; 450 N.R. 287; 345 B.C.A.C. 87; 589 W.A.C. 87; 2013 SCC 58, refd to. [para. 71].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 5(1) [para. 19].

Counsel:

Paul Morrison, Julie Parla, Shane D'Souza and Timothy Chapman-Smith, for the appellant;

Kirk Baert and Celeste Poltak, for the respondent.

This appeal was heard on January 7, 2015, before Weiler, Sharpe and Blair, JJ.A., of the Ontario Court of Appeal. In reasons written by Sharpe, J.A., the Court delivered the following judgment, dated April 14, 2015.