Plaintiff brought action on behalf of all land surveyors in Ontario who created plans of survey. Defendant managed electronic land registry system and made copies of plans of survey and sold them to public for fee. Plaintiff claimed nature of defendant’s business was infringement of copyright of proposed class in plans of survey. Plaintiff sought disgorgement of profits, compensatory damages and statutory damages. Plaintiff sought permanent injunction. Plaintiff’s motion for certification of proposed class action was dismissed. Plaintiff satisfied cause of action requirement except parts of claim for copyright infringement dealing with translation were struck out. Scanning plans to create digital format was not translation within meaning of s. 3(1)(a) of Copyright Act (Can.). Resulting digital plan of survey was not original work because there was no skill and judgment involved in scanning plans of survey. There was no evidence that any other surveyor wished to have copyright infringement complaint determined in class proceeding. Class had to be defined without elements that required determination of merits of claim. Common issues were rejected. Determination of consent was individual issue and had to be decided on individual basis. If defendant were successful in showing class members did not have copyright in plans or that all surveyors consented to defendant’s use of plans, then class would consist of no surveyors and answer to common issues 1 and 2 would bind no one. Common issue was rejected because asking what defendant did would not advance litigation. There was no evidence that common issue 4 could be decided on common basis. Issue of entitlement to damages was not common issue. Issue of interest depended on findings of liabilities and damages which were not amenable to being certified as common issues. Common issue could not be decided on class wide basis and was rejected. Class action was not preferable procedure. Plaintiff was not representative of proposed class because its interests were in conflict with proposed class and it did not provide workable litigation plan.
Keatley Surveying Ltd. v. Teranet Inc. (Dec. 14, 2012, Ont. S.C.J., C. Horkins J., File No. CV-10-414169-00CP) 224 A.C.W.S. (3d) 268.