William O’Hara

Following the dismissal of the plaintiff's motion to certify a class action regarding copyright in land surveyors' plans, the parties could not agree on costs.

The successful defendant sought approximately $496,000, while the plaintiff argued for no costs or a maximum of $80,000, citing the novel point of law and public interest involved.

The court found that while the case raised a novel point of law, it did not involve a matter of public interest.

Applying the principles for fixing costs on a certification motion, the court awarded the defendant $200,000 inclusive of fees, disbursements, and taxes.

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.