Barry B. Sookman

The appellants appealed the Township of Oro-Medonte's new Official Plan regarding short-term rental (STR) policies.

The parties reached a settlement to replace the STR policies and mapping.

The Tribunal found the revised policies represented good planning and approved them.

However, the Tribunal denied the parties' request to withhold the Final Order until a site-specific zoning by-law amendment for certain appellants was processed, finding that delaying a Township-wide policy for a private agreement was not in the public interest.

The Ontario Land Tribunal held a third Case Management Conference regarding appeals of the Township of Oro-Medonte's new Official Plan.

At a previous CMC, the parties had agreed that the Oro-Medonte Association of Responsible STRs' appeal was deemed dismissed by the Cutting Red Tape to Build More Homes Act, 2024 (Bill 185).

However, the Association subsequently argued that its appeal was saved by a transition provision in the Planning Act, because other valid appeals had been filed in respect of the same plan.

The Tribunal agreed with the Association's interpretation of s. 17(24.0.2)(b) of the Planning Act, finding that the Association's appeal was not deemed dismissed and that it maintained its full rights as an appellant party.

The Tribunal also declined to approve a settlement between the Township and other appellants at this stage, directing the parties to provide a status update.

The Ontario Land Tribunal held a first Case Management Conference regarding appeals of the Township of Oro-Medonte's new Official Plan.

Prior to the hearing, two appellants withdrew their appeals.

The Township requested a delay in scheduling the hearing on the merits due to proposed Bill 185, which could retroactively remove the remaining appellants' appeal rights.

The Tribunal scheduled a second Case Management Conference for June 2024 to finalize the Procedural Order and Issues List, and to set hearing dates if necessary.

The appellants challenged the Federal Court of Appeal's decision setting aside the Copyright Board of Canada's tariff determination, which had held that s. 2.4(1.1) of the Copyright Act created a separate compensable 'making available' right triggering royalties both when works are made available online and again when downloaded or streamed.

The majority held that the Board's interpretation violated the principle of technological neutrality and was inconsistent with the text, structure, and purpose of the Act; correctness was the applicable standard of review as concurrent first instance jurisdiction between courts and the Board constitutes a sixth category of correctness review.

Section 2.4(1.1) was interpreted as clarifying only that s. 3(1)(f) applies to on-demand streams and that a work is performed as soon as it is made available for on-demand streaming, with Canada's obligations under art. 8 of the WIPO Copyright Treaty satisfied through a combination of existing performance, reproduction, and authorization rights.

The concurring minority would have applied a reasonableness standard but agreed the Board's decision was unreasonable for disregarding binding precedent and the principle of technological neutrality.

Appeal dismissed.

A land surveying company brought a class action on behalf of Ontario land surveyors whose plans of survey had been digitized, stored, and copied by the province's electronic land registry service provider without payment of royalties.

The appellant argued that Crown copyright under s. 12 of the Copyright Act did not vest in the registered and deposited plans.

The majority held that the comprehensive provincial land registration regime gave the Crown complete control over the publication process, satisfying the requirements of s. 12.

A concurring minority agreed on the outcome but adopted a different interpretive framework, requiring both that the work be published 'by or under the direction or control' of the Crown and that the work qualify as a 'government work' serving a public purpose.

The appeal was dismissed without costs.

This is a costs endorsement following a successful motion by the defendants to strike out the plaintiffs' statement of claim, with leave to amend.

The defendants sought costs on a substantial indemnity scale, arguing the claims were baseless and important to their reputations.

The court denied substantial indemnity costs, finding no reprehensible conduct by the plaintiffs.

Instead, the court awarded costs on a partial indemnity scale to both groups of defendants, fixing specific amounts for fees and disbursements, emphasizing that costs are not a mechanical exercise and must be fair and reasonable for the unsuccessful party.

The plaintiff, Keatley Surveying Ltd., brought a class action against Teranet Inc., alleging copyright infringement for scanning, copying, and making available online plans of survey registered in Ontario's electronic land registry system.

Both parties moved for summary judgment on common issues, primarily concerning whether copyright in the plans belonged to the Province of Ontario under s. 12 of the Copyright Act upon registration or deposit.

The court held that while copyright subsisted in the plans, it belonged to the Province of Ontario pursuant to s. 12 of the Copyright Act, as a result of their registration or deposit in the land registry office, which transferred ownership of the property, including copyright, to the Crown.

Consequently, Teranet, acting under license from the province, did not infringe copyright.

The defendant's motion for summary judgment was granted, and the class action was dismissed.

The plaintiff appealed the dismissal of its motion to certify a class action against the defendant, which manages Ontario's electronic land registry system.

The proposed class action alleged that the defendant's database constituted copyright infringement of plans of survey.

On appeal, the plaintiff recast its case by revising the class definition and common issues.

The Divisional Court allowed the appeal, finding that the plaintiff could recast its case absent non-compensable prejudice to the defendant.

The court held that the motion judge erred in requiring evidence that two or more persons were desirous of pursuing the claim to satisfy the identifiable class criterion.

The revised class definition and common issues met the certification criteria under the Class Proceedings Act, 1992.

The plaintiff surveying firm sought certification of a proposed class action alleging that the operator of Ontario’s electronic land registry system infringed surveyors’ copyright in registered plans of survey by scanning, storing, and selling digital copies through online portals.

The motion was brought under s. 5 of the Class Proceedings Act, 1992.

The court held that although a cause of action for copyright infringement was adequately pleaded (with the exception of allegations based on “translation” into digital formats), the plaintiff failed to satisfy the remaining certification criteria.

The proposed class definition was merits‑based and there was no evidence that two or more persons wished to pursue the claim.

The court also found that the proposed common issues were largely individualized, particularly regarding ownership of copyright and consent, and that a class proceeding would not be the preferable procedure.

The appeal concerned whether downloading a video game containing musical works over the Internet engages the communication right under s. 3(1)(f) of the Copyright Act in addition to reproduction rights.

A majority held that applying a separate communication tariff to permanent downloads would offend technological neutrality because downloading a durable copy is functionally equivalent to purchasing a copy in physical form.

The majority interpreted the communication right as historically tied to performance-based activity and set aside the tariff certification as applied to downloads.

The dissent would have treated communication and reproduction as distinct independent rights both engaged by Internet downloads.

The respondent collective society sought to impose copyright liability on Internet Service Providers (ISPs) for music downloaded in Canada from foreign countries.

The Supreme Court of Canada held that ISPs acting merely as conduits for information communicated by others are protected from liability under s. 2.4(1)(b) of the Copyright Act.

The Court also ruled that the creation of temporary 'cache' copies for technical reasons of economy and efficiency falls within this protection.

Furthermore, the Court determined that the Copyright Act applies to international Internet transmissions that have a real and substantial connection to Canada, rejecting the view that a communication only occurs in Canada if it originates from a server located within the country.

Following the dismissal of the plaintiff's appeal in a copyright infringement action, the Court of Appeal received written submissions to fix the respondents' costs on a substantial indemnity basis.

The court declined to refer the costs for assessment, finding it was better positioned to fix them given its knowledge of the complex appeal.

The court applied the new costs rules and Tariff A grid, rejecting the respondents' request to apply the former solicitor and client scale.

After adjusting hourly rates, reducing preparation hours, and setting off the appellant's costs for interlocutory proceedings, the court fixed the respondents' costs at $536,464.42.

The appellant appealed the dismissal of its copyright infringement action and the assessment of damages awarded to the respondents under an undertaking given for an interlocutory injunction.

The appellant alleged the respondents' computer program infringed its copyright.

The trial judge found no copying of protectable expression, noting that similarities were dictated by functional considerations or were not protectable by copyright.

The Court of Appeal upheld the trial judge's findings on copyright infringement, including the application of the idea/expression dichotomy and the merger doctrine.

The Court also upheld the damages award of over $6.8 million for losses caused by the interlocutory injunction, finding the damages were reasonably foreseeable and caused by the injunction.

The appeal was dismissed.