LEXPERT MAGAZINE
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OCTOBER 2019 15
Catalyst then appealed Justice Hain-
ey's judgment to the Ontario Court of
Appeal. On May 2, 2019, the Court of
Appeal dismissed Catalyst's appeal in ev-
ery respect and affirmed Justice Hainey's
analysis and application of the doctrines
of issue estoppel, cause of action estoppel,
and abuse of process. In particular, the
Court of Appeal concurred that Cata-
lyst's behaviour exhibited "classic signs
of re-litigation," in that Catalyst's second
action concerning WIND was an abusive
attempt to re-litigate findings made by
Justice Newbould in the first action that
were central to the reasons why Catalyst
had failed to acquire WIND.
While Justice Hainey's and the Ontario
Court of Appeal's decisions did nothing but
apply well-established legal principles and
jurisprudence to Catalyst's second action,
the case has been closely watched by the
Canadian financial and legal communities,
given the amounts at stake and the highly
public manner in which Catalyst has pur-
sued its various complaints against numer-
ous high-profile defendants.
Catalyst has made an application to the
Supreme Court of Canada for leave to ap-
peal from the Ontario Court of Appeal's
decision upholding Justice Hainey's judg-
ment. To date, Catalyst has been ordered
to pay over $3.9 million in legal fees to the
various defendants of its successive unsuc-
cessful lawsuits concerning WIND.
Catalyst was initially represented by Lax
O'Sullivan Lisus Gottlieb LLP, with a
team composed of Rocco DiPucchio, An-
drew Winton, and Brad Vermeersch. Since
the fall of 2017, Catalyst has been repre-
sented by David Moore and Ken Jones of
Moore Barristers LLP and Brian Greens-
pan of Greenspan Humphrey Weinstein.
Since the spring of 2018, Catalyst has also
been represented by John Callaghan, Ben-
jamin Na and Matthew Karabus of Gowl-
ing WLG.
West Face Capital Inc. has been repre-
sented by Davies Ward Phillips & Vine-
berg LLP, with a team composed of Kent
omson, Matthew Milne-Smith and An-
drew Carlson.
Globalive Capital Inc. has been repre-
sented by Borden Ladner Gervais LLP,
with a team composed of James Douglas,
Caitlin Sainsbury and Graham Splawski.
VimpelCom Ltd. has been represented
by Norton Rose Fulbright Canada
LLP, with a team composed of Orestes
Pasparakis, Rahool Agarwal (now at Lax
O'Sullivan Lisus Gottlieb LLP), Michael
Bookman and Danny Urquhart.
Tennenbaum Capital Partners LLC,
64NM Holdings GP LLC, 64NM Hold-
ings LP, and LG Capital Investors LLC
has been represented by Blake, Cassels
& Graydon LLP, with a team composed
of Michael Barrack, Kiran Patel and
Daniel Szirmak.
Novus Wireless Communications
Inc. has been represented by McCarthy
Tétrault LLP, with a team composed
of Junior Sirivar, Jacqueline Cole and
Geoff Hall.
UBS Securities Canada Inc. was repre-
sented by Stikeman Elliott LLP, with a
team composed of Daniel Murdoch and
David Byers.
Serruya Private Equity Inc. was repre-
sented by Lerners LLP, with a team com-
posed of Lucas Lung and Jameel Madhany.
*submitted by Davies Ward Phillips
& Vineberg LLP
KEATLEY SURVEYING LTD. V.
TERANET INC.
DECISION DATE: SEPTEMBER 26, 2019
On September 26, 2019 the Supreme
Court of Canada (SCC) issued its deci-
sion in Keatley Surveying Ltd. v. Teranet
Inc., 2019 SCC 43, upholding summary
judgment and dismissing a copyright class
action in favour of Teranet. e claim was
initiated in 2010 by Keatley Surveying Ltd.
on behalf of all land surveyors in Ontario.
e claim alleged that Teranet was infring-
ing surveyors' copyright in plans of survey
that were registered and deposited in On-
tario's land registry system.
BACKGROUND OF THE CASE
Teranet operates Ontario's on-line elec-
tronic land registry system (ELRS) on be-
half of the Province of Ontario. In 1991
Teranet and the Ontario government en-
tered into a public-private partnership to
undertake the automation and conversion
of the paper-based land registry system to
an electronic land title system. is pub-
lic-private partnership was supported by
duly enacted legislation and valid licens-
ing agreements and continued under the
detailed statutory scheme governing the
registration and deposit of all documents
relating to title of land, including plans of
survey. Since the on-line conversion, the
ELRS has become integral to real property
management and transactions in Ontario.
One of the key common issues that was
certified in the class action was whether
the copyright in surveys belongs to the
province of Ontario by virtue of the op-
eration of section 12 of the Copyright Act
which provides that copyright vests in the
Crown in respect of works prepared or
published "under the direction or control"
of the Crown or any governmental depart-
ment. Section 12 has never before been
substantively analyzed in the Canadian
context, and comparative statutes and law
from other jurisdictions did not defini-
tively answer the question of when Crown
copyright is operative under the Canadian
Copyright Act.
At first instance on summary judgment,
Justice Edward Belobaba held that the reg-
istration and deposit of plans of survey into
the Ontario land registry system engages s.
12 and results in copyright vesting in the
province. e Ontario Court of Appeal
unanimously agreed. In a decision written
by Justice David Doherty, the Court con-
firmed that copyright in registered and de-
posited plans of survey vests in the Crown,
and that Teranet was authorized to make
copies of plans available to the public, as
a service provider to the province. Justice
Doherty held, "e extensive property-
related rights in the registered or deposited
plans of survey bestowed on the Crown
by the provincial legislative scheme must
be considered as a whole" and acts to meet
the threshold of the requisite "direction
and control" contemplated by s. 12 of the
federal Copyright Act. Further, the system
within which Teranet operated as a service
provider to Ontario is part of an integral
and required public service.
MATTER SIGNIFICANCE AND GUIDANCE
e Court of Appeal decision in Keat-
ley Surveying Ltd. v. Teranet Inc., 2017
