



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 respondents 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 appellants 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 appellants 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    unpublished and was not provided to the motion judge.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:

1)

Because the appellant did not produce a Guide,
    there was no evidentiary basis to support a claim for copyright in a Guide.

2)

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.

3)

Even if there was any original form of
    expression in the appellants TTC route maps, there was no evidence that the
    TTC used or adopted the appellants maps.

4)

If the appellant had copyright in the expression
    of the appellants 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 appellants 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 TTCs 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.


