Top 5 Civil Appeals From The Court Of Appeal - May 2015

1. Keatley Surveying Ltd. v. Teranet Inc., 2015 ONCA 248 (Weiler, Sharpe and Blair JJ.A.), April 14, 2015

2. Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269 (Cronk, Juriansz and Epstein JJ.A.), April 20, 2015

3. Bouzari v. Bahremani, 2015 ONCA 275 (Juriansz, Rouleau and van Rensburg JJ.A.), April 21, 2015

4. Soboczynski v. Beauchamp, 2015 ONCA 282 (Hoy A.C.J.O., Epstein and Hourigan JJ.A.), April 23, 2015

5. Erickson & Partners v. Ontario (Health and Long-Term Care), 2015 ONCA 285 (Feldman, Benotto and Brown JJ.A.), April 27, 2015

1. Keatley Surveying Ltd. v. Teranet Inc., 2015 ONCA 248 (Weiler, Sharpe and Blair JJ.A.), April 14, 2015

This appeal concerned the certification of a class action by land surveyors seeking to assert a copyright claim to plans of survey registered in Ontario's land registry system.

The appellant, Teranet Inc., manages Ontario's electronic land registry system. It provides electronic copies of registered plans of survey - including drawings, maps, charts and plans - to members of the public for a prescribed fee, but pays no fees or royalties to the land surveyors who prepared them. The respondent, Keatley Surveying Ltd., sought certification of a proposed class proceeding on behalf of the more than three hundred land surveyors in private practice in Ontario whose survey documents appear in Teranet's database. Keatley claimed that land surveyors retain copyright in the plans of survey they prepare and register in Teranet and that the provision of copies of surveys to users of the system infringes that copyright.

The class proceedings judge declined to certify the action. She held that while the pleadings disclosed a proper cause of action, Keatley failed to satisfy other criteria for certification. Specifically, she held that Keatley failed to show an identifiable class, that more than one proposed common issue was potentially certifiable, that a class proceeding was the preferable procedure, that Keatley was representative of the proposed class and that the litigation plan was workable.

On appeal to the Divisional Court, the class definition and the common issues were revised and the action was certified as a class proceeding. With leave to appeal the Divisional Court's decision, Teranet challenged the certification of the action.

The appellant argued that the Divisional Court erred in considering revised proposals for certification that differed from those presented to the motion judge. Writing for the Court of Appeal, Sharpe J.A. rejected this submission, finding that the recast definition of the class did not fundamentally change the nature of the case in a way that would prejudice Teranet. There was "substantial similarity" between the two sets of proposed common issues, with the "conceptual core" of the case remaining unchanged. Sharpe J.A. further found that the change did not deprive Teranet of an opportunity to respond, noting that Teranet neither required nor sought an adjournment to do so.

The Court of Appeal also disagreed with Teranet's submission that, in any event, the action failed to meet the test for certification, arguing that the Divisional Court erred in granting certification on the basis of the revised proposals as to identifiable class, common issues, preferable procedure and representative plaintiff. The Court found the Divisional Court was correct to certify the action, even if the representative plaintiff was the only class member who subjectively wanted to assert a claim.

Finally, Sharpe J.A. found that it was reasonable for the Divisional Court to accept the amended litigation plan provided on appeal, and to refer the details to the common issues judge, who would be best able to determine how to resolve complex individual issues. He noted that developing a detailed litigation plan at this early stage in the proceeding would be difficult, if not impossible.

2. Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269 (Cronk, Juriansz and Epstein JJ.A.), April 20, 2015

In this decision, the Court of Appeal considered the means by which the Environmental Review Tribunal applied the "serious and irreversible harm" test under the Environmental Protection Act, R.S.O. 1990, c.E.19 (the "Act") to a proposed wind farm in Prince Edward County.

The Director for the Ministry of the Environment granted the respondent Ostrander Point GP Inc. a Renewable Energy Approval ("REA") permitting it to construct and operate a wind farm consisting of nine wind turbines on a parcel of Crown land in Prince Edward County.

The appellant, Prince Edward County Field Naturalists, filed an appeal of the Director's decision to grant the REA, claiming that the project would cause serious and irreversible harm to a variety of animal and plant species and the natural environment. The Alliance to Protect Prince Edward County also filed an appeal, claiming that the project would cause...