Keatley Surveying v. Teranet, 2016 ONSC 1139

COURT FILE NO.: CV- 10-414169-CP

DATE: 20160219

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Keatley Surveying Ltd., Plaintiff / Moving Party

AND:

Teranet Inc., Defendant / Responding Party

BEFORE: Justice Edward P. Belobaba

COUNSEL: Luciana P. Brasil and Garth Myers for the Moving Party

F. Paul Morrison and Julie K. Parla for the Responding Party

HEARD: February 19, 2016

Proceeding under the Class Proceedings Act, 1992

Motions for Summary Judgment – Procedural Issues

[1] This copyright dispute between land surveyors and the defendant corporation that manages the province’s electronic land registry system has been certified as a class proceeding.[^1] Both parties have filed summary judgment motions – the defendant did so before certification and the plaintiff after certification. The summary judgment hearing is scheduled for March 10 and 11, 2016. The question before me today is which motion should proceed first and with what evidence?

[2] For the reasons that follow, I conclude that the fair and expeditious determination of this class proceeding requires that the plaintiff’s motion proceed first (rather than the defendant’s) so that the common issues can be decided as certified and the decision will be binding on the entire class. As for the evidence question, the plaintiff’s three additional affidavits may be filed, but the record is then frozen.

Background

[3] Shortly after the plaintiff filed its motion for certification, the defendant Tetranet filed a motion for summary judgment asking that the court dismiss the plaintiff’s breach of copyright claim. The plaintiff opposed the summary judgment motion and argued that the matter required a trial. The case management judge decided that the certification motion should be heard first. The defendant’s motion for summary judgment was adjourned. The plaintiff’s motion for certification was initially dismissed but on appeal the class action was certified.[^2]

[4] The class action was then assigned to me for case management purposes. At the case management conference, both parties indicated they wanted to proceed by way of summary judgment. The defendant asked to re-schedule its motion for summary judgment that had been adjourned by the case management judge some four years before. The plaintiff, in turn, filed a “cross motion” for summary judgment asking that the seven certified common issues now be decided summarily in its favour.

[5] There was also a disagreement about the evidence. The plaintiff wanted to supplement its earlier record with three additional affidavits; the defendant argued that the records as filed almost four years ago should be fixed and that no new evidence should be allowed.

[6] The issue before me is both procedural and evidentiary – which summary judgment motion should proceed, the defendant’s pre-certification motion or the plaintiff’s post-certification motion? And, can the plaintiff file the additional affidavits?

Analysis

[7] The defendant had every right to bring a summary judgment motion to be heard at the same time as the certification motion. Indeed, it is becoming more common for summary judgment motions to be heard even before the certification motion.[^3] However, the case management judge also had every right to direct that the plaintiff’s certification motion be heard first and the defendant’s summary judgment motion be adjourned.[^4]

[8] The class action has now been certified with seven common issues. The next stage in this class action proceeding, as set out in s. 11 of the CPA, is the determination of the common issues, whether by trial or summary adjudication. The plaintiff has moved for summary judgment on the certified common issues issues, albeit by way of “cross-motion” to the defendant’s pre-certification motion. In my view, the plaintiff is entitled to have its motion heard first, as a proper motion for summary judgment, for the following reasons.

[9] First, and most importantly, the matter before me is now a certified class action with certified common issues. Over the four years since the defendant first filed its motion for summary judgment, the action has been certified and the plaintiff has become an accredited representative plaintiff advancing the interests of the class members. The only order under s. 12 of the CPA that would ensure the “just and expeditious determination” of this class proceeding is an order that would allow the adjudication of the certified common issues. The defendant’s motion would only answer the issues as posed by the defendant and would bind only the plaintiff and not the class. This would not result in or ensure a just and expeditious determination of this class proceeding.

[10] Secondly, the parties’ ongoing debate about whether the issues raised in the defendant’s pre-certification motion would fully address all of the nuances in the common issues as certified (with both sides using spread-sheets and comparison charts) only reinforces my conclusion that it makes sense to adjudicate the common issues as actually certified rather than risk gaps or omissions by deciding issues that arguably have not been certified.

Conclusion

[11] Given that the action has been certified, there is little to no basis for the defendant’s submission that its pre-certification motion for summary judgment be heard first. The plaintiff’s post-certification motion for summary judgment (there is no need to call it a “cross-motion”) makes more sense.

[12] As for the evidentiary question, there is no good reason to deny the plaintiff’s request to supplement its now almost four-year old motion record with the three proposed affidavits. I note that the defendant has not made a similar request - if it had, I would have allowed a similar update. I also note that the defendant has not shown, indeed has not even argued, that it would suffer non-compensable prejudice if the plaintiff’s motion record is supplemented as described.

[13] I direct that the original records as filed constitute the evidentiary material that is before the court, with the following qualification: the plaintiff may file the three additional affidavits sworn by Messrs. Bunker, van der Veen and Statham – but of course without prejudice to the defendant who will have every right to question their admissibility and weight.

[14] I further direct that both sides file an updated primary factum no longer than 40 pages using a 13-point font and a brief reply factum of no more than 15 pages. I find that it is usually in the final exchange of “reply facta” that the issues are fully joined.

Costs

[15] The parties have agreed that the costs award on a partial indemnity basis should be $10,000 all-inclusive. Because my decision was in large part a “sequencing” decision, I find it fair and reasonable that costs be ordered in the cause. Costs are therefore fixed at $10,000 all-inclusive payable to the plaintiff in the cause.

[16] Order to go accordingly.

Belobaba J.

Date: February 19, 2016

[^1]: Keatley Surveying Ltd. v. Teranet Inc., 2012 ONSC 7120 (S.C.J.), rev’d 2014 ONSC 1677 (Div. Ct.), aff’d 2015 ONCA 248 (C.A.). [^2]: Ibid. [^3]: See the discussion in Finkelstein, Block, Kain and Shaw, Summary Judgment Prior to Certification in Class Actions: How Microsoft and Hryniak Have Changed the Landscape, (2015) 44 Adv. Q. 229. [^4]: Section 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”) provides that the court, on motion, can make “any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination …” In Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2015 ONCA 572 at paras. 69 and 71, the Court of Appeal made clear that the class action judge should engage in “effective case management” which includes making orders “as to the sequencing of motions.”