



COURT OF APPEAL FOR ONTARIO

CITATION: Keatley Surveying Ltd. v. Teranet Inc., 2017 ONCA
    748

DATE: 20170928

DOCKET: C62211

Doherty, Brown and Miller JJ.A.

BETWEEN

Keatley Surveying Ltd.

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

Teranet Inc.

Defendant (Respondent/

Appellant by way of cross-appeal)

Kirk M. Baert and Celeste Poltak, for the appellant/respondent
    by way of cross-appeal

F. Paul Morrison, Julie K. Parla, Hovsep Afarian and
    Paul J. Davis, for the respondent/appellant by way of cross-appeal

Michael S. Dunn and Savitri Gordian, for the intervener,
    the Attorney General of Ontario

Heard: January 24, 2017

On appeal and cross-appeal from the judgment of Justice Edward
    P. Belobaba of the Superior Court of Justice, dated May 6, 2016, granting
    summary judgment dismissing the appellants class action, with reasons reported
    at 2016 ONSC 1717.

Doherty J.A.:


I



Overview

[1]

In 2007, the appellant, Keatley Surveying Ltd. (Keatley), brought a
    proposed class action on behalf of all land surveyors in Ontario who registered
    or deposited plans of survey in the provincial land registry offices. Keatley
    claimed that the respondent, Teranet Inc. (Teranet), who operated Ontarios
    electronic land registry system (ELRS) for the Province, infringed surveyors
    copyright by digitizing, storing, and copying the plans of survey created by
    the surveyors and registered or deposited in the ELRS.

[2]

The class proceeding judge declined to certify the action as a class
    proceeding:
Keatley Surveying Ltd. v. Teranet Inc.
, 2012 ONSC 7120, 31
    C.P.C. (7th) 14. The Divisional Court, based on a revised list of proposed
    common issues, reversed that decision and certified the action as a class
    proceeding under the
Class Proceedings Act
,
1992
, S.O. 1992, c.
    6:
Keatley Surveying Ltd. v. Teranet Inc.
, 2014 ONSC 1677, 119 O.R.
    (3d) 497. This court affirmed the decision of the Divisional Court: 2015 ONCA
    248, 125 O.R. (3d) 447 (
Keatley

2015).

[3]

Both Keatley and Teranet moved for summary judgment. Teranets motion focused
    primarily on the question raised by Common Issue 2.  That question turned on
    the impact of registration or deposit of plans of survey under the ELRS on
    Crown copyright as described in s. 12 of the
Copyright Act
.

[4]

The motion judge found in Teranets favour on Common Issue 2, granted
    Teranets motion, and dismissed the action. He did so on the ground that
    copyright in the plans of survey registered or deposited under the ELRS
    belonged to the Province of Ontario, and not to the surveyor who created the
    plan.

[5]

The motion judge went on to consider some, but not all, of the other
    issues raised on the summary judgment motions. The parties agree that Keatleys
    action was properly dismissed if the motion judge correctly determined Common
    Issue 2.

[6]

Keatley appeals the dismissal of the action, arguing that the motion
    judge erred in holding that land surveyors do not maintain copyright in the
    plans of survey deposited or registered in the ELRS. Teranet supports the
    motion judges determination on this issue.

[7]

On its appeal, Keatley also challenges the constitutionality of provincial
    legislation that Teranet relies on to support its position that copyright in
    plans of survey deposited or registered in the ELRS belongs to the Province. Keatley
    raises this
vires
argument despite having expressly disavowed any
    claim that the provincial legislation was
ultra vires
in proceedings
    before the motion judge. Teranet submits that Keatley should not be allowed to
    raise constitutional issues for the first time on appeal, and alternatively,
    that there is no merit to the
vires
argument. The Attorney General of
    Ontario intervenes and supports Teranets position. The Attorney General for
    Canada did not intervene.

[8]

By way of cross-appeal, Teranet renews arguments made in respect of the
    other common issues. Teranet submits that the action is properly dismissed on
    those grounds. The motion judge rejected some of these issues, and did not
    consider others. Keatley argues that the cross-appeal should fail.

[9]

For the reasons that follow, I would dismiss Keatleys appeal. I agree
    with the motion judge that copyright in the registered or deposited plans of
    survey belong to the Province. On my analysis, the constitutional issues do not
    arise. As it is unnecessary to the resolution of the claim, I would not address
    the issues raised on cross-appeal.


II



Background

[10]

For some 200 years under the land registration system in place in
    Ontario, documents registered or deposited with land registry offices (LRO),
    including plans of survey, have been accessible and copies have been available on
    request to anybody for a prescribed fee. No part of that fee has ever been
    payable to the land surveyor who prepared the plan of survey, or to the authors
    of any other documents registered or deposited on title.

[11]

Under the previous paper-based regime, anyone wanting a copy of a
    registered or deposited document attended at the appropriate LRO and requested
    a copy. The staff prepared the copy for the set fee.

[12]

In 1991, Teranet and the Ontario government began a joint project aimed
    at creating:

·

an
    electronic land registration and administration system (ELRS); and

·

a
    province-wide index map.

[13]

When completed, the ELRS would allow users to remotely and
    electronically access the land registration system, either for the purpose of
    searches, or to register or deposit documents. As in the days of the
    paper-based system, users were entitled to obtain copies of any document (now
    digital copies), including plans of survey, registered or deposited in the
    system, for a set fee. Again, as in the days of the paper copy regime, no part
    of that fee went to the land surveyor.

[14]

The ELRS was completed in 2010. Land surveyors, working under contract
    with Teranet, played a key role in the creation and development of the ELRS. They
    are among its primary users.

[15]

Teranet manages the ELRS for the Province. It acts under statutory
    authority and pursuant to the terms of licensing agreements with the Province:
The

Electronic Land Registration Services Act
,
2010
, S.O. 2010, c.
    1, Sched. 6. Pursuant to those agreements, the Province retains all rights,
    title, and interest, including intellectual property rights, to the data used
    in the ELRS. The agreements between Teranet and the Province provide that
    Teranet has access to the data in the system pursuant to the licence granted by
    the Province. Teranets role is exclusively that of a service provider retained
    by the Province: see
Keatley

2015, at para. 11.

[16]

As the motion judge noted, Keatleys copyright complaints arose
    subsequent to the arrival of the ELRS. He observed, at para. 11:

[U]nder the paper-based land registration system, land
    surveyors understood and accepted (even if they had no direct knowledge of the
    statutory provisions that made this clear) that the province had the right to
    copy and sell the plans of survey once they were registered or deposited at the
    land registry office.

[17]

In argument before the motion judge, Keatley apparently took the
    position that there was no breach of copyright under the paper-based system
    operating before the implementation of the ELRS. As the motion judge summarized,
    the appellant argued that the Provinces outsourcing of the operation of the
    ELRS to a for-profit third party, including providing copies of plans of
    survey, created the copyright violation:
Keatley Surveying Ltd. v. Teranet
    Inc.
, 2016 ONSC 1717, 131 O.R. (3d) 703, at paras. 17-18 (
Keatley

2016).

[18]

When pressed in oral argument in this court, counsel maintained the
    position taken before the motion judge, but argued that providing copies of
    plans of survey under the old paper regime also breached land surveyors
    copyright, albeit in a less egregious manner.

[19]

In my view, both the change from paper to electronic copies and Teranets
    role in the operation of the ELRS are irrelevant to the merits of Keatleys claim
    of copyright in plans of survey registered or deposited in the ELRS. The
    copyright rests in either the Province or the land surveyor who prepared the
    plan of survey. If the land surveyor has copyright, the making and distribution
    of paper or digital copies of the plan of survey is a breach of copyright
    whether done by an employee of the Province or by a third party hired by the
    Province to perform that function. Equally, if the Province has copyright in
    the registered or deposited plans of survey, the appellant has no claim for breach
    of copyright regardless of whether a government employee, or a third party
    retained by the government, makes the copy.


III



Preliminary points

[20]

Copyright is a creature of statute. The rights and remedies associated
    with copyright are primarily statutory in origin:
Compo Co. v. Blue Crest
    Music Inc.
, [1980] 1 S.C.R. 357, at 372;
Théberge v. Galerie dArt du
    Petit Champlain inc.
, 2002 SCC 34, [2002] 2 S.C.R. 336, at para. 5. The
Copyright
    Act
, R.S.C. 1985 c. C-42, sits at the centre of any inquiry into copyright
    claims.

[21]

Before addressing the relevant provisions of the
Copyright Act
,
    four non‑contentious but important points should be made. First, as
    acknowledged by the parties and the motion judge, copyright subsists in plans
    of survey prepared by surveyors:
Keatley
2016,
at paras. 26-27. Plans of survey are artistic works
    as defined in s. 2 of the
Copyright Act
and attract the protection provided
    by s. 5:
Keatley
2015,
at
    para. 15.

[22]

Second, the land surveyor who prepares a plan of survey is the author of
    that work and, subject to the provisions in the
Copyright Act
, the
    first owner of the copyright:
Copyright Act
, s. 13(1).

[23]

Third, this case is concerned only with copyright in plans of survey that
    have been registered or deposited under the ELRS. The nature and extent of a
    surveyors copyright in plans of survey not registered or deposited under the
    ELRS is not before the court.

[24]

Fourth, surveyors are under no obligation to deposit or register plans
    of survey under the ELRS.  A land surveyor who does not want a plan registered
    or deposited can do at least three things to prevent registration or deposit. First,
    he or she can insert an appropriate term in the retainer with the client if the
    survey is prepared for a client. Second, the surveyor can refuse to sign the
    declaration required for the plan to be registered or deposited.  Finally, and
    I think most clearly, the surveyor can avoid registration or deposit of the
    plan by placing on the plan a claim of copyright or any other restriction on the
    copying of the survey. Any indication on the plan restricting copying will
    assure that the plan will not be accepted for registration or deposit:
O. Reg. 43/96
, s. 9(1)(e), enacted
    pursuant to the
Registry Act
,
    R.S.O. 1990, c. R. 20
. As land surveyors are under no obligation to
    register or deposit plans of survey under the ELRS, and can prevent any plan
    from being registered or deposited, there is no validity to Keatleys
    submission that on the motion judges interpretation of the relevant statutory
    provisions, Teranet has expropriated the copyright of land surveyors whose
    plans are registered or deposited in the ELRS.


IV



the
copyright act

[25]

Common Issue 2 asks:

Does the copyright in the plans of survey belong to the
    Province of Ontario, pursuant to s. 12 of the
Copyright Act
as a
    result of the registration and/or deposit of those plans of survey in the
    Ontario Land Registry Office?

[26]

The motion judge recognized that the answer to Common Issue 2 depended
    on the interrelationship of s. 12 of the
Copyright Act
and various
    provincial enactments dealing with the registration and depositing of documents
    in the land registration system. Section 12 of the
Copyright Act
states:

Without prejudice to any rights or privileges of the Crown,
    where any work is, or has been, prepared or published by or under the direction
    or control of Her Majesty or any government department, the copyright in the
    work shall, subject to any agreement with the author, belong to Her Majesty and
    in that case shall continue for the remainder of the calendar year of the first
    publication of the work and for a period of fifty years following the end of
    that calendar year.

[27]

Section 12, unchanged in its relevant parts, has been in the
Copyright
    Act
for almost 100 years and is closely modeled on the
Copyright Act
    1911
, c. 46, s. 18 (UK): see
Copyright Act
, S.C. 1921, c. 24, s.
    12. The section applies to both the Federal and Provincial Crown:
D. Vaver,
Copyright Law
(Toronto: Irwin Law, 2000),
at p. 92;
D. Gervais and E. Judge,
Intellectual
    Property: The Law in Canada
, 2d ed.
(Toronto: Carswell, 2011), at p. 137;
Manitoba v. Canadian Copyright
    Licensing Agency (Access Copyright)
, 2013 FCA 91, 358 D.L.R. (4th) 563, at
    paras. 34, 48.

[28]

The opening phrase in s. 12, without prejudice to any rights or
    privileges of the Crown, is a reference to the Crowns ancient common law
    copyright-like prerogative to control publication of a variety of materials,
    such as statutes. The exact meaning of the phrase appears to have been lost in
    history: see
D. Vaver,
Copyright Law
, at pp. 93-94;
D. Vaver,

Copyright and the State in Canada and
    the United States

(1996) 10 I.P.J. 1, at 188-192.  Fortunately,
    it has no relevance to this case. It is not suggested that the Province gains
    any copyright under the opening phrase in s. 12 of the
Copyright Act
.

[29]

Section 12 applies to any work that was prepared or published by or
    under the direction or control of Her Majesty. As referenced above, a plan of
    survey is a work within the meaning of the
Copyright Act
: s. 2.

[30]

The motion judge, at paras. 31-33, concluded that a registered or
    deposited plan of survey could not be said to have been prepared by or under
    the direction or control of the Crown. I agree with him: see also
Copyright
    Agency Limited v. State of New South Wales
,
[2007] F.C.A.F.C. 80, 240 A.L.R. 249, at paras. 121-126,
    revd on other grounds: [2008] H.C.A. 35, 248 A.L.R. 590.

[31]

The question becomes whether the registered or deposited plans of survey
    are published by or under the direction or control of the Crown. Publication
    is defined under the
Copyright Act
as including making copies of a
    work available to the public: s. 2.2(1)(a)(i). Under the relevant statutory
    provisions, Teranet is obligated to provide copies of registered or deposited
    plans of survey to members of the public upon payment of the prescribed fee:
Registry
    Act
, s. 15(4);
Land Titles Act
, R.S.O. 1990, c. L.5, s. 165(4). I
    have no doubt that under the statutory scheme, Teranet and hence, the Crown,
    publish those plans of survey when they make copies of those plans available
    to the public: see
Copyright Agency Limited
,

at para. 145.

[32]

Mere publication by the Crown does not, however, trigger copyright in
    the Crown under s. 12 of the
Copyright Act
,
as the motion judge acknowledged, at para. 37 of his
    reasons. Again, I agree with the motion judge. The publication must be by or
    under the direction or control of Her Majesty.

[33]

Copyright describes a variety of different rights associated with a
    work, including, not surprisingly, the right to copy the work:
Copyright
    Act
, s. 3(1);
N. Tamaro,
The 2017 Annotated Copyright Act
(Toronto: Thomson Reuters Canada Limited,
    2016), at p. 260. To determine whether a work is published under the Crowns direction
    or control for the purposes of s. 12 of the
Copyright Act
, one must consider
    the nature of the rights in the property held by the Crown when the Crown
    publishes the property (when the Crown makes copies available). In my view, the
    more extensive those rights, and the more rights associated with copyright are
    in the Crowns hands, the stronger the inference that the publishing occurs
    under the direction or control of the Crown.

[34]

These rights are also informed by a series of provincial statutes
    dealing with land registry in Ontario: the
Registry Act
;
Land
    Titles Act; Surveyors Act
,
R.S.O. 1990, c. S. 29; and
Surveyors
    Act
, R.S.O. 1990, c. S. 30. The relevant provisions transfer various
    property rights in the registered or deposited plans to the Crown. To begin
    with, a person registering or depositing the plan must file the physical
    document in the LRO:  O. Reg. 43/96 to the
Registry Act
, s. 7. Subject
    to regulation, registered or deposited plans must be retained in the exclusive custody
    and possession of the Crown. They are declared to be the property of the
    Crown:
Land Titles Act
, s. 165(1);
Registry Act
, ss. 18(10),
    50(3).

[35]

Exclusive custody and control of the document on which the plan is made does
    not, of course, equate with holding copyright in that plan:
J.S. McKeown
, Fox on Canadian Law of
    Copyright and Industrial Designs
, 4th ed. (Toronto: Thomson Reuters, 2007),
    at pp. 19-15. However, statutory provisions giving the Crown exclusive custody
    and control over the registered or deposited plan must be relevant to whether the
    Crowns publication of that plan occurs under the Crowns direction or control.

[36]

The statutory scheme also places strict controls on the form and content
    of the plans of survey that are submitted for registration or deposit. The statutory
    regime gives the Examiner of Surveys, a government official, broad authority to
    review plans to ensure compliance with the required form and content. The
    Examiner of Surveys can require surveyors to produce evidence to support any
    questioned aspect of the survey:  see O. Reg. 43/96 to the
Registry Act
,
    ss. 5(1), 6, 9(1);
Land Titles Act
, s. 14; O. Reg. 216/10 to the
Surveyors
    Act
, c. S. 29, ss. 8-27. Changes can be required before the plan will be
    accepted for registration or deposit.

[37]

Provisions controlling the content and form of plans of survey submitted
    for registration or deposit do not in and of themselves constitute direction
    or control for the purposes of s. 12:
Land Transport Safety Authority of
    New Zealand v. Glogau
,
[1999] 1 N.Z.L.R. 261, at 272-273 (C.A.);
Glaxo Canada Inc. v. Apotex Inc.
(1994), 58 C.P.R. (3d) 1, at p. 9 (F.C.T.D.), revd (1995) 64 C.P.R. (3d) 191
    (F.C.A.). However, mandatory provisions imposing detailed requirements on the
    form and content of plans of survey, coupled with the Examiner of Surveys extensive
    supervisory powers, are relevant to whether subsequent publication of the
    registered or deposited plan occurs under the direction or control of the
    Crown.

[38]

The statutory regime also provides that once a plan of survey has been
    registered or deposited, the surveyor has no authority to change the content of
    the plan without the Examiner of Surveys permission. In fact, someone other
    than the surveyor can apply to the Examiner for an order directing that a
    change be made to the registered or deposited plan:
Land Titles Act
,
    s. 145(6);
Registry Act
, s. 89; O. Reg. 43/96 to the
Registry Act
,
    s. 49. As with the other features of the statutory regime, I do not suggest
    that the exclusive power of a government official to change a registered or
    deposited plan of survey is determinative of copyright under s. 12 of the
Copyright
    Act
. Common sense, however, strongly suggests that an exclusive power to
    alter the document, even without the knowledge or approval of the author, strongly
    supports a claim of control over the document.

[39]

The features of the relevant provincial legislation reviewed to this
    point provide significant support for Teranets position. However, the
    provisions concerning the copying of plans of survey registered or deposited on
    title provide the strongest support for Teranets position. Under both the
Land
    Titles Act
and the
Registry Act
, certified copies of registered
    or deposited plans of survey must be made available to members of the public
    upon payment of the prescribed fee. For example, s. 15(4) of the
Registry
    Act
directs that the registrar shall upon receiving the required fee
    produce for inspection any document registered or deposited on title in the
    LRO. The registrar must also supply a copy of the whole or a part of any
    instrument or documentregistered or deposited in the office See also
Land
    Titles Act
, s. 165(4).

[40]

As Binnie J. observed in
Théberge
, at para. 42: Copyright law
    is in essence about protecting the right to multiply copies. Statutory
    provisions, placing an obligation on the Crown upon request to make available
    certified copies of plans of survey, speak loudly to the nature and extent of
    the Crowns control over the publication of the plans. Such a statutory
    obligation is fundamentally inconsistent with the claim by the documents author
    to a right to control the making of copies of the document. That right is integral
    to the existence of copyright in the registered or deposited plans.

[41]

The exclusive authority of the Crown to reproduce registered or
    deposited documents is further evinced by O. Reg. 43/96 to the
Registry Act
.
     Section 9(1)(e) of that regulation provides that a plan shall not include any
    notes, words or symbols that indicate that the right to make or distribute
    copies is in any way restricted.

[42]

One of Keatleys witnesses on the summary judgment motion confirmed that
    since at least 1981, staff in the LRO have refused to accept for registration
    or deposit any plan of survey that has on its face any claim for copyright in
    the document.

[43]

The extensive property-related rights in the registered or deposited
    plans of survey bestowed on the Crown by the provincial legislative scheme must
    be considered as a whole when deciding whether registered or deposited plans of
    survey are under the direction or control of the Crown when they are
    published (when copies are made available to the public). The statutory
    scheme, considered in its entirety, goes far beyond simply authorizing the
    Crown to impose terms on the content and form of documents to be registered or
    deposited, or to copy plans of survey deposited or registered in the ELRS. The provisions
    oblige the Crown to maintain possession and custody of all registered plans of
    survey. The Crown must provide access to those plans upon request. The surveyor
    cannot place any marking on the plan claiming any kind of copyright. The
    surveyor cannot make any change to the plan once it is registered or deposited,
    without the permission of the Examiner of Surveys. The Examiner, on the other
    hand, can make changes even without the permission of the surveyor. Finally, of
    course, the Crown is statutorily obliged to provide certified copies upon
    request.

[44]

The statutory provisions give the Crown complete control over registered
    or deposited plans of survey and complete control over the publication of
    those plans of survey within the meaning of the
Copyright Act
. I am
    satisfied that certified copies of plans of survey made available to members of
    the public under the statutory scheme are works published under the direction
    or control of the Crown for the purposes of s. 12 of the
Copyright Act
.
     Pursuant to the terms of that section, copyright in registered or deposited
    plans of survey belongs to the Crown for the period of time prescribed in
    that section.

[45]

Although the motion judge and I arrive at the same conclusion, we reach
    that place after traveling somewhat different roads. Like the motion judge, I am
    satisfied that registered or deposited plans of survey are published by the
    Crown for the purposes of s. 12 of the
Copyright Act
when copies,
    digital or paper, are made available to, or provided to, members of the public.
    However, I would not describe the applicable provincial legislation as
    transferring ownership of the copyright to the Province. In my view, the provincial
    provisions are relevant to whether the copies of the plans are made available
    under the Crowns direction or control. Considered as a whole, the provisions
    demonstrate that plans of survey registered or deposited in the ELRS are held
    and published entirely under the Crowns direction and control. Ownership of copyright
    does not, however, flow from the provincial land registration scheme. It is s.
    12 of the
Copyright Act
that vests copyright in the Crown by virtue of
    the publication of those plans under the direction or control of the Crown.

[46]

Counsel thoroughly scoured the case law and texts for assistance in
    interpreting s. 12 of the
Copyright Act
. Most of the limited body of
    case law addresses the opening language of s. 12 and the scope of the Crown
    prerogative captured by that phrase. There is very little case law that speaks
    to the rest of s. 12 and in particular, the meaning of the phrase direction or
    control: e.g. see
Ironside v. H.M. Attorney-General
,
[1988] R.P.C. 197, at 203 (Chan. Div.);
Land Transport Safety Authority of New Zealand
,

at 272-273;
D. Vaver,

Copyright and the State in Canada and the United
    States,
at 190-92.

[47]

Only one case,
Copyright Agency Limited
, deserves specific
    reference. The facts are very similar to the facts of this case.
Copyright
    Agency Limited
involved a copyright-like claim to registered plans of
    survey advanced on behalf of land surveyors against the Crown. The relevant
    land registration scheme contained provisions much like those found in the
    Ontario legislation. Those provisions included an obligation on the Crown to
    provide copies of registered plans of survey upon request.

[48]

In the Australian High Court, the case turned on the interpretation of a
    statutory provision requiring the Crown to compensate a copyright holder if the
    Crown published a work for the services of the State. There is no similar provision
    applicable in this case and the reasons in the High Court are not helpful for
    present purposes.

[49]

The Federal Court of Appeal below, however, did consider whether the
    Crown or the surveyor had copyright in the registered plans of survey. In doing
    so, the court considered ss. 176 and 177 of the Australian
Copyright Act
    1968
(Cth)
.

Those
    sections read together are similar to s. 12 of the Canadian
Copyright Act
.
    Section 177 addresses works published under the direction or control of the State.
    That section reads, in part:

Subject to this Part and to Part X, the Commonwealth or a State
    is the owner of the copyright in anartistic work,
first
    published in Australia
if first published by, or under the direction or
    control of, the Commonwealth or the State, as the case may be.  [Emphasis added.]

[50]

After observing that the registered plans were no doubt published under
    the direction or control of the State when copies were made available, the
    court observed that s. 177 applied only to works first published in Australia.
    The court went on, at para. 146, to say:

However, the question is whether that is
    the first publication of the Relevant Plans
. An artistic work is first
    published when it is made available to the public. Publication occurs when
    reproductions of the work are made available to the public. Publication occurs
    when the reproduction is put on offer to the public, where the person who makes
    the offer is prepared to supply on demand, whether or not the offer is
    advertised. [Emphasis added.]

[51]

The court rejected the submission that a registered plan of survey was a
    different work than an unregistered plan prepared by the surveyor. The court
    held that the plans were published by surveyors prior to registration of the
    plans either when plans were provided to the surveyors clients, or when plans
    were made available to various regulatory and planning authorities. Because the
    plans were previously published in Australia, the Crowns publication of the
    plans in the context of the land registration scheme could not vest copyright
    in the Crown under s. 177: paras. 143-151.

[52]

Section 12 of the
Copyright Act
does not limit publication to
    first publication in Canada. Instead, s. 12 refers to any work that is
    published under the direction or control of the Crown and provides for a
    period of copyright measured from the Crowns first publication of the work. The
    question of whether the Crown has copyright under s. 12 of the
Copyright
    Act
, unlike its

Australian counterpart, does not depend on whether
    the work has been previously published in Canada.

[53]

In summary, I would hold that the extensive property-related rights
    bestowed on the Crown by the land registration scheme in Ontario compel the
    conclusion that the publishing of those plans, by making copies of the plans
    available to the public, is done under the direction or control of Her
    Majesty.  Section 12 of the
Copyright Act

declares that the
    copyright in the registered or deposited plans of survey belongs to the Crown.

[54]

On the interpretation that I take, there is no
vires
problem. Federal
    legislation, s. 12 of the
Copyright Act
, bestows copyright on the
    Crown. Provincial legislation informs the copyright inquiry mandated by s. 12.  Specifically,
    provincial legislation speaks to whether the plans are published by the Crown
    and if so, whether that publication takes place under the direction or
    control of the Crown.

[55]

On my interpretation of the interaction of the provincial legislation
    with s. 12 of the
Copyright Act
, Keatleys arguments based on other
    provisions of the
Copyright Act
also fall quickly to the wayside. Keatley
    relies on s. 89 of the
Copyright Act
, which says, in part: No person
    is entitled to copyright otherwise than under and in accordance with this Act
    or any other Act of Parliament. On my analysis, the Crown holds copyright in
    the registered or deposited plans under s. 12 of the
Copyright Act
and in accordance with the
Copyright Act
. Section 89 does not
    advance Keatleys cause.

[56]

Keatley also relies on s. 34.1 of the
Copyright Act
. That section
    creates a presumption that the author of the work is the owner of the copyright
    in the work unless the contrary is proved. Teranet has established the
    preconditions to Crown copyright under s. 12 of the
Copyright Act
.  In
    doing so, Teranet has rebutted any presumption that may arise under s. 34.1.


V



conclusion

[57]

I would dismiss the appeal and affirm the order below dismissing
    Keatleys action.  I would not address the merits of the cross-appeal and would
    dismiss that appeal as moot in light of my disposition of the main appeal.

[58]

Unless the parties can agree on costs, they should exchange and file
    written submissions on the costs of the appeal within 30 days of the release of
    the reasons.  The submissions should not exceed seven pages.

Released: DD  SEP 28 2017

Doherty J.A.

I agree D.M. Brown
    J.A.

I agree B.W. Miller
    J.A.


