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CITATION: Keatley Surveying v.

Teranet, 2016 ONSC 1717


COURT FILE NO.: CV-10-414169-CP
DATE: 20160506

SUPERIOR COURT OF JUSTICE - ONTARIO


RE:

Keatley Surveying Ltd., Representative Plaintiff


AND:
Teranet Inc., Defendant

BEFORE:

Justice Edward P. Belobaba

COUNSEL: Luciana Brasil and Garth Myers for the Representative Plaintiff
Paul Morrison, Barry Sookman, Julie Parla, Shane DSouza and Paul
Davis for the Defendant Teranet
HEARD:

March 10, 2016


Proceeding under the Class Proceedings Act, 1992

Summary Judgment on the Common Issues

[1]
This long-running copyright dispute between land surveyors and the private sector
company that manages the provinces electronic land registry system is finally before the
court for a decision on the merits. The land surveyors class action, filed in 2007, was
certified on appeal in 2015.1 Both sides now move for summary judgment on the
common issues.

Keatley Surveying Ltd. v. Teranet Inc., 2012 ONSC 7120 (S.C.J.), revd 2014 ONSC 1677 (Div. Ct.), affd 2015
ONCA 248 (C.A.).

- Page 2 -

Background
[2]
The background facts were set out in full in the certification decisions of the
motion judge, the Divisional Court and the Court of Appeal and will not be repeated
here.2 The backdrop in brief is this.
[3]
The defendant, Teranet, manages Ontario's electronic land registry system.
Documents prepared by land surveyors, including drawings, maps, charts and plans
("plans of survey") are registered in the electronic land registry system (ELRS).
Teranet provides on-line copies of registered plans of survey to members of the public for
a fee prescribed by statute but pays no fees or royalties to the land surveyors who
prepared the plans of survey.
[4]
The plaintiff, Keatley Surveying, brings this class proceeding on behalf of the
approximately 350 land surveyors in private practice in Ontario whose land surveys were
scanned and copied into Teranet's digital database and made available on-line. The
plaintiff says by copying and selling their plans of survey on-line, Teranet is in breach of
copyright and is unlawfully appropriating for itself the benefit of the class members
professional land survey work.
Before the ELRS
[5]
Before the creation of the electronic land registration system, land surveyors,
retained and paid by their client, registered or deposited the completed plan of survey at
the land registry office. The government registry office provided copies to members of
the public or other surveyors for a fee. When copies were made, no further fees or
royalties were paid to the surveyors by the province.
[6]
The provinces right to make copies of the plans of survey is set out in the
applicable property statutes. Section 50(3) of the Registry Act3 and section 165(1) of the
Land Titles Act4 both provide that all plans of survey submitted for deposit or registration
at a land registry office become the property of the Crown. This does not necessarily
mean that the copyright, which is a form or property,5 is also being transferred to the

Ibid.

Registry Act, R.S.O. 1990, c. R.20.

Land Titles Act, R.S.O. 1990, c. L.5.

R. v. Stewart, [1983] O.J. No. 3071 (C.A.) at paras. 58, 67 and 69: It is well established that copyright is a
form of property analogous to personal propertyCopyright is a significant property right of substantial importance
to modern commercial enterprises. It constitutes property See also De Montigny v. Cousineau, [1950] 12 C.P.R.
45 at 53.

- Page 3 -

Crown. It is well established that the transfer of the ownership or property in a document
does not necessarily affect the ownership of the copyright in the document.6
[7]
Here, however, other related provisions deal directly with this point. Section
15(4) of the Registry Act specifically requires that registered surveys shall be copied,
computerized and distributed to the public for a fee.7 A parallel section in the Land Titles
Act, s. 165(4)(b), similarly imposes a statutory obligation on the province to make and
sell copies of the plans of survey. This section also authorizes the distribution of a
computerized copy of the plan to the public for a fee.8 The statutory prescription and
authorization for copying the plans of survey strongly suggests a legislative intention that
property of the Crown as used in these statutory provisions includes copyright.9
[8]
It is also important to note that in a Regulation passed pursuant to the Registry
Act, [a] plan [of survey] shall not include any notes, words or symbols that indicate
that the right to make or distribute copies is in any way restricted. In other words, the
plans of survey may be copied and sold to the public and no markings may be added to
these documents to indicate otherwise.10
[9]
In my view, these statutory provisions make clear that when plans of survey are
registered or deposited at the land registry office, the province takes ownership of the
property in these works which includes the right to make copies.
[10] It is interesting to note that this is the reality that has always been understood and
accepted by the land surveyors. The Association of Ontario Land Surveyors (the
AOLS) has noted routinely in its bulletins that surveyors do not retain copyright in the
plans of survey once they are registered or deposited at the land registry office:

Underwriters' Survey Bureau Ltd v Massie & Renwick Ltd, [1940] SCR 218, at para 33. Also see Ontario
(Consumer and Commercial Relations) (Re), 1996 CanLII 7705 (ON IPC) at 10-11.
7

Section 15(4) authorizes a facsimile of the plan being made available to the public for a fee. The word
facsimile is defined in s. 1 as including a print from microfilm and a printed copy generated by or produced from
a computer record (emphasis added).
8

As in the Registry Act, the word facsimile is also defined in s. 1 of the Land Titles Act as including a print from
microfilm and a printed copy generated by or produced from a computer record.
9

Although headings within legislation may not be referred to for the purposes of statutory interpretation (per s. 70 of
the Legislation Act 2006, S.O. 2006, c. 21, Schedule F), it is notable that in amendments that are now in force (Bill
55, An Act to implement Budget measures and to enact and amend various Acts, 1st Sess. 40th Parl. Ontario, 2012,
(Royal Assent received), S.O. 2012, C.8), the legislature clarified the heading preceding s.165(4)(b), previously
entitled Custody of registered documents. The heading will now read: Ownership of registered documents.
10

Section 9(1)(e) of O. Reg. 43/96.

- Page 4 Proper subjects of copyright are all plans and reports prepared by a
surveyor with the exception of those plans prepared under instructions
from the Crown and plans prepared for registration or deposit in a
Registry Office.11

[11] In sum, under the paper-based land registration system, land surveyors understood
and accepted (even if they had no direct knowledge of the statutory provisions that made
this clear) that the province had the right to copy and sell the plans of survey once they
were registered or deposited at the land registry office.
[12]

So what was it about the ELRS that changed this understanding and acceptance?

The public-private partnership


[13] In 1991, the Ontario government entered into a public-private partnership with
Teranet (a private sector company) to undertake the automation and conversion of the
paper-based land registration system into an electronic (on-line) title system. Millions of
documents, including plans of survey registered and deposited at the land registry offices,
were scanned into a digitized database. The ELRS was finally completed in October
2010.
[14] Teranet provides two on-line service portals, Teraview and GeoWarehouse,
through which licensed users can access the ELRS. Users of these two portals can search
and obtain copies of real property records, including plans of survey. Accessing plans of
survey through either Teraview or GeoWarehouse requires the payment of statutorily
prescribed fees.
[15] Many surveyors were consulted and some actually participated in the development
of the ELRS, both individually and through the AOLS. A significant number of surveyors
make use of the Teranet portals to obtain plans of survey 73 of the 350 class members
hold active Teraview licences, and 22 surveying firms, including the two largest
surveying firms in Ontario, hold active GeoWarehouse licences.
The class members complaint
[16] Class counsel says that the land surveyors are not opposed to the modernization or
even privatization of the provinces land registry system. The land surveyors themselves

11

AOLS Bulletin, Procedures for Copyrighting Survey Plans and Reports at 2(a); also see AOLS Bulletin,
Clarification Bulletin Re Copyright at 1: All plans and reports not entering the registry system should be
copyrighted by the member of the Association preparing the same. (Emphasis added.)

- Page 5 -

acknowledge that they took a lead role in advocating a fully electronic and remotely
accessible system.
[17] The class members complaint is that a for-profit third party [has] inserted itself
between the government and users of land registration services and reaps substantial
profits at the expense of class members.
[18] In other words, the complaint is not about the ELRS per se, but the fact that the
province has delegated or out-sourced the operation and management of the on-line
system to a third party for-profit company that is authorized to make and sell copies of
the plans of survey for a fee at the expense of the class members.
[19] But, as I have just noted, the surveyors did not complain about copyright
infringement under the paper-based system and, in all likelihood, would not have
complained about copyright infringement if the province itself had established and
operated the ELRS. It is the public-private partnership genesis of the on-line system and
the insertion of a for-profit third party that is the basis of the complaint and the impetus
for this class action.
The province had every right to do what it did
[20] The province could have financed and established an electronic land registration
system on its own. But for various reasons, including no doubt the enormous cost of
doing so, the province chose to develop the ELRS by way of a public-private partnership.
The significant financial investment made by the private sector partner would obviously
be recovered by way of fees charged to the public.12
[21] The out-sourcing of the operation of the ELRS to Teranet under the public-private
partnership arrangement was supported by duly enacted legislation13 and valid licensing

12

13

There was no direct evidence on this point but it is self-evident and thus can be the subject of judicial notice.

The Land Registration Reform Act, R.S.O. 1990, c. L.4. authorizes the Crown to create an ELRS. The Electronic
Land Registration Services Act, 2010, S.O. 2010, c. 1, Schedule 6, confirms the Crowns authority to enter into
contracts with a service provider for the provision of such land registration and related services as may be specified
in the agreement and to grant a licence to a service provider to access, use, copy, sell and otherwise deal with the
land registration and writs data specified in the agreement with the service provider. There is a clear statutory
requirement that plans of survey be available electronically: see s. 2 of the Electronic Land Registration Services
Act, 2010. Also see Article 8.2(1) of the Second Amended and Restated Licence Agreement: Teranet, on behalf of
the Ministry, shall facilitate the delivery of the ELR Services in accordance with the Land Registration Statutes and
this Agreement.

- Page 6 -

agreements.14 The fees that Teranet can charge are all statutorily prescribed.15 As noted
by the Court of Appeal, Teranet now manages Ontario's electronic land registry system
as a service provider to the government.16
[22] In short, there is nothing legislatively or contractually deficient about the
establishment and operation of the ELRS.
[23]

I can now turn to the common issues.

The common issues


[24] The parties cross-motions for summary judgment ask that the following certified
common issues be answered, ideally in their favour:
1. Does copyright under the Copyright Act subsist in Plans of Survey?
2. Does the copyright in the Plans of Survey belong to the 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?
3. Does the signed declaration affixed to the Plan of Survey at the time of
registration and/or deposit constitute a signed written assignment of
copyright to the Province of Ontario pursuant to subsection 13(4) of the
Copyright Act?

14

Pursuant to Teranets agreements with the provincial government, the Crown retains all right, title, and interest,
including, expressly, the intellectual property rights, to the data used in the provision of services. The data
includes all land registration documents registered and deposited in the LROs. Teranet accesses Crown data to
provide electronic land registration services pursuant to an exclusive licence granted to Teranet. The agreements
between Teranet and the province make clear that Teranet is a service provider to the province. The fact that the
agreements between the province and Teranet expressly disclaim any warranties to the effect that the province owns
the copyright in plans of survey does not detract from the analysis herein. Copyright in plans of survey once they are
registered or deposited has never been judicially decided until now. The warranty disclaimers were no doubt added
out of an abundance of caution.
15

When a user accesses the ELRS and obtains plans of survey, either via Teraview or GeoWarehouse, the user is
charged only the statutory fee and/or the mutually agreed fee, both of which are statutorily prescribed.
Currently, the fees are authorized by a Ministers Order dated December 10, 2010, made under the Land Titles Act,
pursuant to section 163.1 of the Land Titles Act and section 101.1(1) of the Registry Act. See also ss. 2(3) and 2(4)
of the Electronic Land Registration Services Act, and the Second Amended and Restated Licence Agreement,
Articles 7.1, 7.4(1) and (2). The current version of the license agreement provides that, during the exclusive term (to
March 31, 2067), Teranet is entitled to receive and retain all Statutory Fees, Mutually Agreed Fees [and other
fees]. Further, s. 2(5) of the Electronic Land Registration Services Act specifically provides that [t]he fees that
[Teranet] collects for its own account [] is revenue belonging to [Teranet] and is not public money [].
16

Keatley (C.A.), supra, note 1, at para. 11.

- Page 7 4. Are Class Members deemed to have consented to any or all of the Alleged
Uses by the Defendant of Plans of Survey as a result of the registration
and/or deposit of those Plans of Survey to the Ontario Land Registry
Office?
5. Did the Defendant make any or all of the Alleged Uses of Plans of
Survey? If so, which ones?
6. If the answers to common issues 2 and 3 are no, do any or all of the
Alleged Uses constitute:
(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?

[25]

I will consider each of the common issues in turn.

Common Issue 1
[26] Common Issue 1 asks whether copyright under the Copyright Act17 subsists in the
plans of survey. There is no dispute on this point. The Copyright Act expressly includes
drawings, maps, charts [and] plans within the definition of an artistic work that
attracts copyright protection.18 Teranet agrees that copyright subsists in the plans of
survey.
[27]

The answer to Common Issue 1 is yes.

[28] The more interesting question is who owns the copyright and whether the class
members have a claim for infringement under the Copyright Act.19

17

Copyright Act, R.S.C., 1985, c. C-42.

18

Copyright Act, s. 2; see also Island View v. Anderson, 2000 BCSC 1121, at para 16.

19

In particular, ss. 3(1) and 27(2) of the Copyright Act.

- Page 8 -

Common Issue 2
[29] Common Issue 2 asks whether the copyright in the plans of survey belongs to the
Province of Ontario pursuant to section 12 of the Copyright Act as a result of the
registration or deposit of those plans of survey in the land registry office.
[30]

Section 12 of the Copyright Act provides as follows:


Without prejudice to any rights or privileges of the Crown, where any
work is, or has been, prepared or published by or under the direction or
control of Her Majesty or any government department, the copyright in
the work shall, subject to any agreement with the author, belong to Her
Majesty and in that case shall continue for the remainder of the calendar
year of the first publication of the work and for a period of fifty years
following the end of that calendar year.20

[31] Teranet submits that the plans of survey in question were prepared or published
by or under the direction or control of the province and therefore copyright belongs to
the Crown. There are two prongs to the s. 12 provision: prepared and published. I
will consider each in turn.
[32] First, prepared. In my view, plans of survey are not prepared under the
direction or control of the province. Plans of survey are generally prepared at the request
of private clients who have an interest in the land under survey and who contract directly
with the surveyor. It is true that the preparation of a plan of survey must conform to
certain statutorily prescribed guidelines21 but these are guidelines about the form, not the
content of the survey. I am unable to conclude that the plans of survey presented for
registration or deposit at the land registry office were prepared under the direction or
control of the province.
[33] I also agree with the plaintiff that Teranets submission about preparation fails
for two other reasons: first, it would mean that copyright in all plans of survey, even
those that are never registered or deposited, would automatically belong to the Crown
upon creation given that their preparation was informed by the same provincial statutes
and regulations; and secondly, if Teranet is correct, it would also mean that lawyers who
file pleadings or facta at court registries would lose the copyright in their work simply
because they complied with the statutory filing requirements about form or content.

20

Copyright Act, s. 12,

21

See, for example, ss. 8-18 of O. Reg. 216/10, enacted under the Surveyors Act, R.S.O. 1990, c. S.30.

- Page 9 -

[34]

Next, published. Teranet relies primarily on this second prong.

[35] Section 12 has not been the subject of definitive judicial interpretation. Some legal
commentators believe that this provision refers only to copyright in materials produced
by the government and simply preserves the pre-statutory Crown prerogative to publish
such government materials as judicial decisions and legislative enactments.22 In his text
on copyright law, Professor Vaver says that s. 12 provides for the term of copyright in
works that are prepared or published by the federal or provincial government and that
are first owned by it.23
[36] Teranet, however, argues that s. 12 should be read literally. After the plans of
survey are registered or deposited at the land registry office, they are digitized and then
published (that is, made available to the public24) on-line. And because all of this is done
by or under the direction or control of the province, it follows says Teranet, that the
copyright belongs to the province. The province in turn has duly licensed Teranet to
make and sell the copies. There is thus no infringement.
[37] I am not persuaded by this submission. In my view, if the statutory provisions in
the Registry Act and the Land Titles Act (as already discussed) did not exist and all one
had was s. 12 of the Copyright Act, this provision by itself would not be enough to
acquire copyright. Just because the federal or provincial government publishes or directs
the publication of someone elses work (as opposed to governmental material) cannot
mean that the government automatically gets the copyright in that work under s. 12 of the
Copyright Act.
[38] Fortunately, I do not have to decide this point. Here, as I have already noted,
provincial property statutes make clear that the property in the plans of survey, including
the copyright, is transferred to the province when the plans of survey are registered or
deposited at the land registry office.
[39] Recall that Common Issue 2 asks whether the copyright in the plans of survey
belongs to the province pursuant to section 12 of the Copyright Act as a result of the
registration or deposit of those plans of survey in the land registry office.

22

Judge, "Crown Copyright and Copyright Reform in Canada", in Geist (ed.), In The Public Interest: The Future of
Canadian Copyright Law (2005), at 550-594.
23

24

Vaver, Copyright Law (2000), at 107.

Massie & Renwick, Limited v. Underwriters' Survey Bureau Ltd. et al., [1940] S.C.R 218 at 220 and 227;
Infabrics Ltd. v. Jaytex Ltd., [1982] A.C. 1 (H.L.) at 16. Section 2.2(1) of the Copyright Act also provides: For the
purposes of this Act, publication means (a) in relation to works, (i) making copies of a work available to the
public.

- Page 10 -

[40] The answer has to be yes. As a result of the registration or deposit of the plans
of survey in the land registry office, the ownership of the property in this material,
including the copyright, is transferred to the province. At that point, the province has
control of the plans of survey. The plans of survey are then published by or under the
direction or control of Her Majesty. When this happens, according to s. 12 of the
Copyright Act, the copyright in these works belongs to the province for the term of years
that is prescribed.
[41] In my view, s. 12 of the Copyright Act, primarily a term of copyright provision,
clarifies Crown copyright but does so without prejudice to any rights or privileges of the
[provincial] Crown. Thus, the provincial property of the Crown provisions already
discussed, and s. 12 of the federal Copyright Act, can live together and operate
concurrently.
[42]

In any event, the answer to Common Issue 2 is yes.

[43] Both sides agree that this is the determinative issue if the answer to Common
Issue 2 is yes then there is no copyright infringement and that is the end of the class
action.25
Common Issue 3
[44] Common Issue 3 asks whether a signed declaration affixed to plans of survey at
the time of their registration or deposit constitutes a signed written assignment of
copyright to the province of Ontario pursuant to subsection 13(4) of the Copyright Act.
[45] Section 13(4) provides that the owner of the copyright in any work may assign
the right, either wholly or partially, and either generally or subject to limitations but
no assignment or grant is valid unless it is in writing signed by the owner of the right in
respect of which the assignment or grant is made.26
[46] The signed declaration at issue herein is the declaration of compliance with all
applicable Acts, regulations under them and practice standards that surveyors are

25

Much of the argument around s. 12 also considered the application of s. 2.2(3) of the Copyright Act and the
meaning of not deemed to be published. I do not have to resolve this debate because this is not a case where the
act of publication was done without the consent of the owner of the copyright. As already noted, the province
became the owner of the copyright when the plans of survey were registered or deposited at the land registry office.
Therefore the plans were published with the consent of the owner of the copyright.
26

Copyright Act, s. 13(4).

- Page 11 -

required to provide to their clients upon completion of a project (defined to include a


plan of survey) in accordance with s. 4 of Ontario Regulation 216/10.27
[47] Where a "cadastral" survey is prepared (a plan of survey that involves the
establishment or reestablishment of boundaries), s. 4(3) of O. Reg. 216/10 requires that
the surveyor sign and date a declaration of compliance in Form 1 as follows:
I certify that:
This survey and plan are correct and in accordance with the Surveys
Act, the Surveyors Act and [any other appropriate act] and the
regulations made under them.
The survey was completed on [date].28

[48] The signed declaration of compliance says nothing about copyright or an


assignment of rights. It merely states that a plan of survey is correct and in accordance
with statutory requirements.
[49] In short, I agree with the plaintiff that the answer to Common Issue 3 can only be
no.
Common Issue 4
[50] Common Issue 4 asks whether class members are deemed to have consented to
the alleged uses of the plans of survey by Teranet as a result of the registration or deposit
of those plans of survey to the Ontario land registry office.
[51] As already discussed, upon deposit or registration of the plans of survey at the
land registry office, the applicable provincial legislation makes clear that the copyright in
this material belongs to the province. There is therefore no need to inquire into the
consent or deemed consent of the surveyors. The province, as the owner of the copyright,
can make and distribute copies whether in person or on-line.
[52]

It is not necessary to answer Common Issue 4.

Common Issue 5:
[53] Common Issue 5 asks whether Teranet made any of the following alleged uses of
plans of survey:

27

O. Reg. 216/10 under the Surveyors Act, R.S.O. 1990, c. S. 29, s. 4.

28

Ibid.

- Page 12

making copies of plans of survey;

transmitting digital copies of plans of survey to Teranets datareceiving centre;

storing digital copies of plans of survey in the Teranets


electronic database;

adding the digital copies of plans of survey to Teranets index of


documents available through Teraview and/or GeoWarehouse;

offering the digital copies of plans of survey to customers for a


fee; and/or

allowing Teranets subscribers and/or members of the public


download one of more copies of plans of survey.

[54] The evidence is clear that Teranet made use of the plans of survey in all the ways
alleged. The answer to Common Issue 5 is yes to all of the alleged uses.
Common Issue 6:
[55] If the answers to Common Issues 2 and 3 are no, then Common Issue 6 asks if
any of all of the alleged uses constitute an infringement of copyright.
[56] The answer to Common Issue 2 was yes. Therefore, Common Issue 6, which
generated much debate about the fair dealing defence,29 cannot be answered.
Common Issue 7
[57] Common Issue 7 asks whether Teranet has a defence to copyright infringement
based on public policy. Here again, given the answer to Common Issue 2 and the finding
that Teranet has not infringed the class members copyright, no public policy defence is
required. Nor is there any value in answering this issue in a vacuum.
[58]

29

There is no need to answer Common Issue 7.

The fair dealing exception as set out in s. 29 of the Copyright Act provides that [f]air dealing for the purpose of
research [or] private study does not infringe copyright.

- Page 13 -

Disposition
[59] Common Issue 1 was not contested. Common Issues 3 and 5 were answered in
favour of the plaintiff. Common Issues 4, 6 and 7 were not answered. However, Common
Issue 2, the determinative issue, was answered in favour of Teranet. Consequently,
Teranets motion for summary judgment is granted and the class action is dismissed.
[60] Teranet is entitled to costs. The representative plaintiff would have asked for
$75,000 had the class prevailed. Teranet would have sought $200,000. In my view, a fair
and reasonable costs award is probably around $125,000. If the parties cannot agree on
the costs award, they may forward brief submissions - Teranet first and the plaintiff
within 14 days thereafter.
[61] I am grateful to counsel on both sides for the quality of the written and oral
advocacy.

Belobaba J.

Date: May 6, 2016