COURT OF APPEAL FOR ONTARIO
CITATION: Walcott v. Toronto Transit Commission, 2021 ONCA 358
DATE: 20210528
DOCKET: C68252
Strathy C.J.O., Feldman and van Rensburg JJ.A.
BETWEEN
Anderson T. Walcott
Plaintiff (Appellant)
and
Toronto Transit Commission, Bell Canada, Schwedt Map Art and CMA/CPA
Defendants (Respondent)
Anderson T. Walcott, acting in person
Justin Lim, for the respondent
Heard: May 21, 2021 by videoconference
On appeal from the judgment of Justice Benjamin T. Glustein of the Superior Court of Justice, dated February 25, 2020.
REASONS FOR DECISION
[1] The appellant appeals from the judgment that dismissed his motion for summary judgment against the respondent, and granted the respondent’s motion for summary judgment dismissing his action against it for copyright infringement.
[2] As a preliminary matter, the respondent submitted in its factum that this appeal should have been brought to the Divisional Court. We reject that submission. The appellant’s claim was for $2,000,000 for copyright infringement. The motion judge found no liability and dismissed the action. However, he did not find that the value of the claim was under $50,000. A final order that dismisses an action on the basis of no liability does not have the effect of quantifying the damages at zero dollars. If it did, then every appeal from the dismissal of an action would be to the Divisional Court, rather than only those where the value of the damages claimed or quantified is under $50,000, contrary to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43: see Harte-Eichmanis v. Fernandes, 2012 ONCA 266, 15 R.F.L. (7th) 1, at paras. 13-14.
[3] The appellant approached the Toronto Transit Commission (“TTC”) in 1994 offering to create a bus and subway route map guide. The TTC responded that such a guide was already available to its passengers. In 1996, the appellant raised concerns with the TTC that its route maps appeared in the Yellow Pages Directory, to which the TTC responded that those route maps had been internally generated and were not based on the appellant’s proposed guide. On August 5, 1996, the appellant obtained a Certificate of Registration for a Guide from the United States Copyright Office. However, that Guide was unpublished and was not provided to the motion judge. The appellant provided only “route maps” that he proposed to include in the Guide. Those route maps were not in the form of maps, but were lists of transit stops along bus routes. There was also one document that was in the form of a map with businesses on the street identified in handwriting.
[4] The evidence of the TTC was that it has been publishing route maps of its transit lines for many years in a number of formats. The motion judge found that evidence to be uncontested. These maps do not include information about businesses along the routes, like those prepared and submitted by the appellant. In his action, the appellant claims copyright in the publication of all transit routes and schedules in Canada and the U.S., based on his U.S. Certificate of Registration.
[5] The motion judge determined that he could decide both motions on summary judgment as there was no genuine issue requiring a trial. He made the following findings:
Because the appellant did not produce a Guide, there was no evidentiary basis to support a claim for copyright in a Guide.
As there is no copyright in ideas but only in their form of expression, there was no originality in the route maps the appellant produced which were taken from public information about TTC transit routes.
Even if there was any original form of expression in the appellant’s TTC route maps, there was no evidence that the TTC used or adopted the appellant’s maps.
If the appellant had copyright in the expression of the appellant’s maps, the scope of any such copyright would not extend to prevent the TTC from producing its own route maps.
[6] Based on those findings, the motion judge dismissed the appellant’s action for copyright infringement.
[7] In oral argument, the appellant asserted that the affidavit evidence filed by the TTC was untrue regarding the history of its publication of transit route maps. There is no basis on the record for making such an assertion. The deponent of the TTC’s affidavit was not cross-examined, and his evidence was supported by documentary exhibits.
[8] We see no error in the findings of the motion judge with respect to the record and the law of copyright, and in finding no genuine issue requiring a trial.
[9] The appellant also sought to keep the respondent in the action as a conspirator with the federal government in respect of his claim for “assault, slander, defraud and deny rights, benefits and privileges of freedom of [the appellant].” The motion judge found that there was no evidence to support the alleged claims against the respondent and therefore granted summary judgment dismissing the action against it with costs of $25,000. We see no error in this finding, and no genuine issue requiring a trial.
[10] The appeal is therefore dismissed with costs fixed in the amount of $8,000 inclusive of disbursements and HST.
“G.R. Strathy C.J.O.”
“K. Feldman J.A.”
“K. van Rensburg J.A.”