On October 1, 2024, the Federal Court (the FC) released its decision in Toronto Regional Real Estate Board v IMS Incorporated (RE Stats), 2024 FC 1537, dismissing a motion to strike brought by IMS Incorporated, c.o.b. as RE Stats (IMS) relating to certain copyright infringement claims in The Toronto Regional Real Estate Board’s (TRREB) Second Amended Statement of Claim (the Amended Claim).
In 2020, TRREB commenced copyright infringement proceedings in connection with the selection and arrangement of the contents of its Multiple Listing Service (MLS) system. In 2021, the FC set aside an order that struck TRREB’s copyright infringement claims; this decision was upheld by the Federal Court of Appeal (FCA), as previously reported by the E-TIPS® Newsletters here and here, respectively.
While the appeal to the FCA was pending, TRREB served and filed its Amended Claim, further alleging that it owns copyright in communication signals “broadcast on the Internet” and that IMS infringed its copyright in those communication signals.
In considering IMS’s assertions that TRREB is not a broadcaster and that internet transmission is not a communication signal within the meaning of the Copyright Act, the FC noted that while IMS’s arguments may ultimately be proven to be true, “the allegations in the pleading that are capable of being proved must be taken as true” for the purposes of a motion to strike. Accordingly, the FC held that it would be inappropriate to resolve such factual and evidentiary issues on a motion to strike, and that IMS failed to establish that it is plain and obvious the pleaded allegations disclose no reasonable cause of action.
The FC also rejected IMS’s assertion that certain allegations in the Amended Claim constituted a radical departure from TRREB’s original pleadings. The FC found that while TRREB did not assert ownership claims to MLS content in prior proceedings, this did not preclude it from now alleging it is the owner of MLS content. The FC clarified that a party not claiming ownership of copyright in an earlier proceeding does not equate to a disclaimer of copyright ownership.
The FC therefore issued an order dismissing IMS’s motion to strike, among other things.
Summary By: Steffi Tran
E-TIPS® ISSUE
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