Wednesday, March 27, 2019

Keatley v. Teranet: Land Surveys, the Law of the Land and Access to Justice – The Supremes will Have Their Hands Full but will They Have Everything they Need?

(Clarke Surveyors Inc.)

An interesting and potentially very important copyright case is about to the heard by the Supreme Court of Canada on appeal from the Ontario Court of Appeal in the Keatley v. Teranet case. Here’s the SCC’s summary – which is not official but which is concise and useful. Here are a few points to note.

The case concerns copyright in land surveys – which are an essential element in Ontario of proof of land ownership and which are a key component of all real estate transactions. These surveys are required by law and required to be registered on title and the Government of Ontario has privatized key aspects of the land registration system to an entity known as Teranet. The case is focussed on crown copyright and s. 12 of the Copyright Act.

Teranet, which is resisting the payment of additional fees to surveyors beyond that which they were paid originally for doing the survey – has never disputed the notion that copyright subsists in land surveys.  Indeed, the two actual parties (Keatley and Teranet) agreed for purposes of this litigation that copyright so subsists, although this crucial issue is far from clear and certainly not obvious.

There are a number of interveners in the case, who are providing valuable and essential input under the relatively new intervention constraints which permit at most a 10-page factum and five minutes of oral argument. Here is a link to all the factums. Particularly noteworthy IMHO are the intervener factums of the Attorney General of Canada, Canadian Association of Law Libraries, CANLII and the Federation of Law Societies, and the Centre for Intellectual Property Policy + Prof. Ariel Katz.

Also, of great interest, is that that similar and related issues are pending in the case of  P.S. Knight Co. Ltd. v. Canadian Standards Association, 2018 FCA 222, recently decided in a split decision by the FCA favouring the CSA. This case concerned whether copyright exists and is enforceable with respect to privately developed electrical safety codes that become incorporated by reference into Canadian law. The decision was rendered on December 7, 2018 and CSA predictably quickly sought and has been granted leave to intervene in the Keatley case in the SCC. Surprisingly, however, P.S. Knight, did not even try to seek leave to intervene in Keatley, although it has asked for leave appeal its own case to the SCC. Although the Knight decision has been referred to and the obvious issue of access to justice has been raised in some of the intervener material, the Knight case might have forced this issue to the forefront. Clearly, these two cases will not be heard together – which might have been a possibility and arguably would have been ideal. Moreover, it is entirely possible that leave to appeal won’t even be granted in the Knight case. In any event, it is very likely that, if normal timelines are followed, the Keatley case will be decided long before the Knight case is even heard, assuming that P.S. Knight gets leave to appeal.

In any event, and without involvement of P.S. Knight, the Keatley case will go forward and will be heard on March 29, 2019. The webcast will be available here.


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