Divisional Court did not err by allowing plaintiff to recast case on appeal

CLASS ACTIONS

Divisional Court did not err by allowing plaintiff to recast case on appeal

Teranet manages Ontario’s electronic land registry system, providing electronic copies of registered plans of survey, including drawings, maps, charts and plans prepared by land surveyors, to public for fee. No fees or royalties paid to land surveyors who prepared plans of survey. Plaintiff, land surveyor, asserted copyright in plans of survey it prepared and sought certification of class proceeding on behalf of land surveyors in Ontario whose surveys appear in digital format in Teranet’s database. Class proceedings judge refused to certify class proceeding. Divisional Court certified action on basis of revised class definition and common issues. Teranet’s appeal dismissed. Unlike most surveyors, plaintiff ordinarily does not require or obtain copies of surveys from Teranet. Located and operating almost exclusively on Manitoulin Island, plaintiff has copies of work of most surveyors who have ever worked on the island. Common ground that plans of survey acquire copyright protection. Divisional Court did not err by allowing plaintiff to recast case on appeal. Class proceedings evolve and there must be some latitude for consideration of issues not raised at first instance provided other party afforded procedural fairness. Plaintiff’s reformation of class definition not fundamentally changing nature of case. Any prejudice dealt with by costs order. There was substantial similarity between two sets of proposed common issues. Teranet not at disadvantage in presenting arguments to Divisional Court on revised common issues; conceptual core of case remained unchanged. Teranet had prior notice of revisions and full opportunity to make submissions. No new evidence required. Divisional Court did not err by considering revised proposals. Revised common issues isolated fundamental questions based upon legal position taken by Teranet. Resolution of issues would significantly advance the litigation. Plaintiff’s unique circumstances, in particular lack of reliance on Teranet, made him ideally suited to vigorously prosecute claim. Situation of other surveyors not so different so as to give rise to conflict or make  plaintiff unsuitable to represent their interests. Incumbent on proposed representative plaintiff to show two or more individuals have same claim. Existence of more than one claim apparent from nature of claim; not necessary to show there are class members, other than plaintiff, who wish to pursue claims as class action. Reasonable for Divisional Court to accept litigation plan; it was inevitable plan would be modified as case proceeds.
Keatley Surveying Ltd. v. Teranet Inc. (Apr. 14, 2015, Ont. C.A., K.M. Weiler J.A., Robert J. Sharpe J.A., and R.A. Blair J.A., File No. CA C59341) Decision at 239 A.C.W.S. (3d) 862 was affirmed.  252 A.C.W.S. (3d) 18.