16 LEXPERT MAGAZINE
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OCTOBER 2019
ONCA 748 confirmed the importance and validity of public-pri-
vate partnerships, and how these relationships must be understood
as part of, and integrated with, the government's statutory and
regulatory responsibilities. e Court of Appeal's definitive and
unanimous decision also confirmed the reliability and priority of
the provincial electronic land registry system, without interference
from other interests, for businesses engaged in real property trans-
actions. e representative plaintiff sought and was granted leave
by the SCC.
e SCC in a unanimous decision dismissed the plaintiff 's
appeal with two sets of concurring reasons, each of which con-
firmed the public importance of land registration documents and
Teranet's role as a service-provider for the province. Justice Rosa-
lie Abella, writing the majority's reasons, applied an interpretive
framework for determining when s. 12 is engaged and when a
work is "prepared or published by or under the direction or con-
trol of the Crown." ese factors include the presence of a statu-
tory scheme that transfers property rights, places controls on the
content of the work, whether the Crown physically possesses the
work, and whether the published works must be available to the
public. Justices Russell Brown and Suzanne Côté, writing the
minority reasons, took a different approach and determined that
for s. 12 to be engaged, the work had to be "a government work."
Both the majority and minority agreed, however, that their re-
spective analyses applied to plans of survey, such that copyright
vested in the Crown.
Until today, s.12 had not been comprehensively reviewed
by a Canadian court since its enactment in 1921 and the
decision will have broad implications and application.
McCarthy Tétrault LLP represented Teranet through-
out certification and through to summary judgment at the
Supreme Court of Canada, with a team co-led by Julie Par-
la and Barry Sookman, that consisted of Hovsep Afarian,
Stephanie Sugar, Simon Cameron, and F. Paul Morrison.
Keatley Surveying Ltd. Was represented by Branch
MacMaster LLP with a team led by Luciana Brasil.
*Submitted by McCarthy Tétrault LLP
FRAM ELGIN MILLS 90 INC. V.
ROMANDALE FARMS LIMITED ET AL.,
2019 ONSC 5322
DECISION DATE: SEPTEMBER 13, 2019
is litigation, part of a broader dispute that has been on-
going since 2007, was heard in a contested three-week trial
in October 2018. e case covers multiple actions com-
menced against Romandale by two plaintiffs, Fram Elgin
Mills 90 Inc. (Fram) and Jeffrey Kerbel et al. (Kerbel), sur-
rounding ownership of 280 acres of undeveloped land in
Markham, Ontario.
BACKGROUND OF THE CASE
Fram and Kerbel are developers with minority ownership
of the lands, while Romandale owns more than 90% of the
lands in question, farmland properties known as the McGrisken
Farm and the Snider Farm. If successful, these actions would have
required Romandale to sell its 90%+ interest in the lands at a signif-
icant discount of $160,000 per acre and also pay up to $60,000,000
in damages to Fram.
MATTER SIGNIFICANCE AND GUIDANCE
e parties argued, and Justice Spies considered, a large number of
legal doctrines including among others: repudiation of contract, the
duty of good faith, the existence of and breach of fiduciary duties
between commercially sophisticated parties, specific performance,
equitable damages in lieu of specific performance, mitigation, frus-
tration, mistake and estoppel.
In her 104-page decision, Justice Spies dismissed all of the plain-
tiffs' claims, making Romandale ultimately successful in this long
and high-profile dispute.
McCarthy Tétrault LLP has represented Romandale in this
dispute since 2015, with a team made up of Sarit Batner, Kosta
Kalogiros, and Avi Bourassa.
Rueters LLP represented Fram Elgin and its affiliates with a
team comprised of Robert Rueter, Sara J. Erskine, and Janet Lunau
Aird & Berlis LLP represented Jeffrey Kerbel, 2001251 Ontario
Inc., and First Elgin Developments Inc. with a team comprised of
Martin Henderson and Miranda Spence.
*Submitted by McCarthy Tétrault LLP.
BIG SUITS
RECENT LITIGATION OF IMPORTANCE
