Supreme Court sides with Ontario in dispute over property-survey copyright

OTTAWA — A Supreme Court of Canada decision has put the brakes on a long-planned class-action suit over the rights to property surveys in Ontario.

Keatley Surveying Ltd. brought the action 12 years ago on behalf of Ontario companies that deposited plans of survey in provincial land-registry offices.

In 1991, the Ontario government and Teranet Inc., a for-profit company, began work on an electronic land-registration and administration system.

Keatley argued that Teranet, operator of the land-registry database on behalf of the province, infringed surveyors’ copyright by digitizing, storing and copying the plans of survey.

When plans are deposited at a registry office, Teranet scans the documents and adds them to its database. It makes the digitized documents available through two service portals for a fee.

Copies of such plans filed with registry offices have long been available to members of the public for a fee, and the land surveyor who prepares the document has never received a portion of the money.

An Ontario judge dismissed the class action, finding that copyright concerning the plans of survey had been transferred to the province.

Keatley unsuccessfully challenged the decision in the Ontario Court of Appeal, prompting the company to take the case to the Supreme Court.

In its decision Thursday, the high court upheld the lower-court decisions, saying the Crown, not the surveyors, controls copyright related to the plans.

The seven justices who heard the case all agreed that Keatley’s appeal should be dismissed, though they provided two sets of reasons.

The decision is the first time the Supreme Court has reviewed the scope of the nearly century-old Section 12 of the federal Copyright Act. The section vests copyright in the Crown for any work prepared or published by, or under the direction or control of, a government agency.

Justice Rosalie Abella, writing on behalf of three others, said in this case the Crown has copyright because it directs and controls every aspect of publication of the deposited plans of survey. When Teranet makes the works available through the digital portals Teraview or GeoWarehouse, this publication is done under the Crown’s direction, she said.

“While the S. 12 test is a stringent one, it is readily met on the facts of this case,” Abella wrote.

The plans of survey in the registry are meant to be used by the public to determine property rights and obligations, she added.

“It is for this very reason that the Crown decided to create a single, authoritative registry. These are precisely the types of works over which Crown copyright should subsist — those over which it is necessary for the Crown to guarantee authenticity, accuracy and integrity in the public interest.”

This report by The Canadian Press was first published Sept. 26, 2019.

— Follow @JimBronskill on Twitter

Jim Bronskill, The Canadian Press