Federal Court Of Appeal Of Canada Dismisses Appeal, Allowing TRREB To Pursue Its Claim For Copyright Infringement

On March 28, 2023, the Federal Court of Appeal of Canada (FCA), in IMS Incorporated v Toronto Regional Real Estate Board, 2023 FCA 70, dismissed an appeal, in part, relating to a decision of the Federal Court (FC) which set aside an order striking the statement of claim of the Toronto Regional Real Estate Board (TRREB).

The underlying action relates to a claim brought by TRREB against IMS Inc. and Leon Y. d’Ancona (collectively, IMS) for copyright infringement relating to the Multiple Listing Service online system (MLS® System) operated by TRREB.

IMS brought a motion to strike TRREB’s statement of claim in its entirety.  The case management judge (CMJ) struck TRREB’s statement of claim for lack of jurisdiction and abuse of the Court’s process, finding that the FCA decision in Toronto Real Estate Board v Commissioner of Competition, 2017 FCA 236, held that copyright does not subsist in the MLS® System, and therefore it was an abuse of the Court’s process to relitigate the issue.  The FC set aside this order, concluding that the CMJ committed a palpable and overriding error in relying on the previous FCA decision to strike out the copyright claims, as previously reported by the E-TIPS® Newsletter here.  IMS appealed.

On appeal, the FCA held that no error was made by the FC in finding that the CMJ erred in concluding that the works at issue were the same as those in the 2017 FCA decision. Further, the FCA agreed that there was no basis for concluding that the works at issue in the 2017 matter were the same as those referred to in TRREB’s statement of claim in this matter.  The FCA allowed the appeal, in part, to correct a technical flaw in the FC’s order, but otherwise dismissed the appeal on its merits.

Summary By: Michelle Noonan