Legal Feeds Blog
A class action launched by land surveyors who claimed copyright infringement against Teranet — the private sector company that manages Ontario’s land registry system — has been dismissed.
|The Ontario Superior Court has ruled the Crown has copyright over plans of survey. (Photo: Shutterstock)|
The class action in Keatley Surveying v. Teranet was filed in 2007, and was certified on appeal in 2015. Both sides moved for summary judgment on the common issues and the decision was issued May 6 in Ontario’s Superior Court.
Keatley Surveying brought the action on behalf of about 350 land surveyors in private practice in Ontario whose surveys were scanned and copied into Teranet’s digital database and made available online. By copying and selling their plans online, the surveyors claimed Teranet was breaching their copyright and unlawfully appropriating for itself the benefit of the class members’ professional land survey work.
The class members’ complaint was that a for-profit third party inserted itself between the government and users of land registration services and “reaps substantial profits at the expense of class members.”
Justice Edward Belobaba decided in favour of Teranet and the class action was dismissed on common issue two, which asked whether the copyright in the plans of survey belongs to the Province of Ontario under s. 12 of the Copyright Act, as a result of the registration or deposit of the plans of survey in the land registry office.
Teranet argued the plans of survey in question were “prepared or published by or under the direction or control” of the province and therefore copyright belongs to the Crown.
Belobaba said in his view “ . . . statutory provisions make clear that when plans of survey are registered or deposited at the land registry office, the province takes ownership of the property in these works which includes the right to make copies.”
“In my view, s. 12 of the Copyright Act, primarily a ‘term of copyright’ provision, clarifies Crown copyright but does so ‘without prejudice to any rights or privileges of the [provincial] Crown.’ Thus, the provincial ‘property of the Crown’ provisions already discussed, and s. 12 of the federal Copyright Act, can live together and operate concurrently,” wrote Belobaba.
“In any event, the answer to Common Issue 2 is ‘yes.’”
As both sides agreed that was the determinative issue then there is no copyright infringement “and that is the end of the class action.”
The next step could be an appeal to the Court of Appeal, but plaintiff lawyer Garth Myers would not comment on whether an appeal will be pursued.
“We were successful on a couple of the common issues and we’re quite pleased we succeed on the Crown copyright issue and assignment issue. We got caught on the second part of common issue two, which was determinative. We don’t agree with the judge’s finding on that issue. The issue that remains is whether the provincial statutes provide for copying that takes away copyright of land surveyors,” said Myers, an associate with Koskie Minsky LLP.
Belobaba decided Teranet was entitled to costs and while it would have sought $200,000, he indicated a reasonable costs award is “probably around $125,000.”
Myers said there will be submissions on costs.
Legal Feeds could not reach counsel for Teranet before publication.
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A new report from TGO Consulting says in-house counsel will avoid difficult fee negotiations with law firms with whom they’ve had long-running relationships. Instead, they’ll move the work in-house, or send it to a lower-tier firm or an alternative service provider in order to meet budgetary needs.
|Instead of negotiating price, in-house counsel will ‘vote with their feet’ by finding less expensive options, says new report.|
“[I]nstead of hard negotiation on price with their lawyers, the in-house department has found an easier and far less confronting way to realize savings on the budget; instead of negotiating they push work down. In effect they ‘vote with their feet’. Work that is deemed too expensive is simply taken from one law firm and given to another that is less expensive to start with,” says the report, called The Trend is Clear, the Blow is Yet to Come.
The report is based on face-to-face interviews with 15 general counsel or people in charge of managing outside legal services for international companies spanning a broad range of sectors, from the financial sector to heavy industry. TGO Consulting focuses specifically on the legal sector and its ownership structure.
Some of the findings of the report may be hard to confront, especially for law firms that see their work as bespoke.
“From the client’s perspective, for the vast majority of legal matters there are multiple law firms and numerous lawyers that can perform the same task equally well,” said the report, which focuses on the increasing “commoditization” of legal services. The report later said: “When judging if a service is a commodity or not, is the opinion of the client that counts.”
So, how does this pull by the client to pull down costs manifest?
The report says that “surprisingly” the biggest savings haven’t happened thanks to “negotiating special rates, whether during a panel appointment round or on ad-hoc basis.” Lawyers feel it’s important to have a good relationship with their “incumbent” law firms, so a pattern of avoidance emerges.
“Instead of confronting the trusted outside legal advisors they work with, nearly every single general counsel speak of ‘pushing work down.’ The same work that a client would hand to a firm in Tier 1 of its panel is increasingly being given to a firm from one tier below,” said the report.
Law firms are not feeling the pain, said the report.
“A pattern clearly emerges from this survey: the erosion of work for upper mid-market firms. By being able to shift work down when they need to cut cost, without having to compromise on the results, general counsel can reach their budget taregts. But for most lawyers this has been done in stealth,” said the report.
David Felicissimo, general counsel for Valnet Inc., says the legal industry is ripe for disruption.
He says negotiation around price is a careful area for in house counsel with law firms where they have an established relationship. For example, he points to section of the report that said “in-house lawyers also typically have an excellent working relationship with their outside counsel. A relationship they do not want to spoil by breaking bad news on the pricing and the hourly rates.”
“That I find absolutely true,” says Felicissimo.
Felicissimo says in terms if negotiation, he does not negotiate with his external law firm as much as he negotiates with “everybody else."
“I’m sure that has to do with or it does have to do with, the personal relationship you have with them, the excellent service they provided — obviously if you’re still with them for many years it means they’ve provided excellent service in return. When you have a history with a certain firm, and you’ve been through a lot of battles with them, they’ve done a lot of great work, excellent advice, it kind-of feels like you’re watering down their services when you’re trying to negotiate a rate. That’s how I feel,” he says.
Helen Fotinos, national co-chairwoman of McCarthy Tétrault LLP’s franchise and distribution group, says she challenges “clients to leverage their position by selecting firms they can truly partner with.”
Price should not be the only focus, she says.
“I agree with the report’s findings that clients have the upper hand, but I would also challenge clients to leverage their position by selecting firms they can truly partner with, and not focusing on price alone, they would be doing themselves and their companies a disservice if that’s the only metric,” she says in an e-mail to Legal Feeds.
Using many firms to do many things costs time and money, not to mention how cumbersome it is to manage, says Fotinos.
“The majority of in-house legal departments are lean, with resource challenges of their own. Given the option, why wouldn’t a client invest with a single service provider, who similarly invests in the client’s business, and who could work as an ally to manage portfolio risk and control legal spend?”
Update 2:30 p.m.: Comments from David Felicissimo updated.
Traditionally, if a person wanted to sue someone in Ontario and that amount fell under $25,000, he or she would have to prepare all the necessary documents and then take the time to go to small claims court to file them.
As of last week, the court has finally entered the Internet era, as the Ontario Ministry of the Attorney General announced all small claims can now be filed online.
Brendan Crawley, a spokesperson for the AG, explained that since small claims court online applications were piloted online in 2014, more than "20,000 small claims have been filed online, and over 15 per cent of those claims were filed outside regular court hours.”
Crawley adds that the process is made secure by requiring “users to create and use a One-key ID and password, a unique electronic credential that allows users to communicate securely with online Government services.”
Why is the Ministry of Attorney General doing this now?
Crawley said that this was done to make “court services easier, faster and more accessible by delivering them online”.
“The intention has always been to expand it [the e-filing system],” adding that “filing online is really an advanced feature and it’s overdue, it should be expanded beyond small claims to all courts," says Toronto commercial and franchise litigator Ben Hanuka, of Law Works PC.
There will also be actual cost savings to clients if a lawyer or paralegal represents them, because they can now save on having to use a process server.
While Hanuka acknowledges, “It’s a good step . . . this saving of time for the consumer is good,” he also cautions that just because the filing is made easier, doesn’t mean the rest of the claim will be easy to handle.
“I think it will help them [consumers] with the logistics of filing it but it won’t do anything about helping them draft the claim and the drafting is the hard part," he says.
Before individuals begin filing, there are a few things they will need, including a ServiceOntario account, a credit card, a summary of why they are making the claim, and documents that support the claim.
What about people who are not exactly technologically savvy? Are they able to navigate the murky waters of online filing?
Crawley says the process is actually quite simple.
“The online filing wizard makes the process of completing and filing a small claim and receiving a judgment faster and more accessible by breaking it down into a series of easy-to-follow steps," he says.
The takeaway from the government’s announcement is that Canadian governments and courts are recognizing that they have to move with the times and many are now moving towards filing claims online.
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- Lay person could not be expected to know if she had a claim against former lawyer, says court
Personal-injury lawyers who advise their clients to settle for amounts that are alleged to be improvidently low could face malpractice claims many years after the settlement.
|Bryan Rumble says it comes down to what a lay person, not a lawyer, could be reasonably expected to know.|
“When is it reasonable for a lay person to know that she should sue her lawyer?”
The case stems from a car accident in 2002, in which Melody Lauesen was injured. Lauesen then retained the legal services of Fern Silverman, of Goldman Sloan Nash and Haber LLP, to commence an action. In 2005, Silverman advised her client to accept a settlement of $26,169.36.
Lauesen was unhappy with the low amount but chalked it up to a faulty legal system. In 2008, she requested Silverman’s help in getting statutory benefits for her injuries. In 2009, Silverman requested a $500 retainer, which Lauesen says she couldn’t afford. At that point, the solicitor-client relationship ended.
One year later, Lauesen consulted with another lawyer, Joseph Falconeri, who suggested she get a second medical opinion.
After receiving a fresh opinion that her condition met the statutory definition of “catastrophic impairment,” Lauesen was advised by her new lawyers to launch an action against her former lawyers for breach of contract, negligence and breach of fiduciary duty.
At a preliminary motions hearing, the judge threw out the case, ruling that the limitation period of two years — from the point of the settlement in 2005 — had long expired.
The appeal court, however, disagreed. In a unanimous decision written by Justice Kathryn Feldman, the court found that a lay person like Lauesen could not be expected to know that she had a claim until she understood the extent of her injuries and spoke to another lawyer.
“[A] reasonable person with the appellant’s abilities and in her circumstances would not have realized that she had a claim against the respondents, when no one, including the respondent, indicated to her that an error might have been made with respect to the settlement,” writes Feldman.
“It was only with that information, and with the legal advice of her new lawyer, that the appellant first knew or had the ability to know that she had a claim against the respondents.”
Bryan Rumble, the lawyer at Falconeri Munro Tucci LLP who represented Lauesen before the appeal court, says it comes down to what a lay person could be reasonably expected to know — not what a lawyer might be expected to know.
“You have to look at what a reasonable person would do, but that ‘reasonable person’ has to be in the same situation as the person who is the subject of the claim,” he says. “So I guess if that person was a lawyer it would be a different situation.”
Rumble says, while this case doesn’t really develop the law around discoverability, it does prove that cases such as these — where allegedly improvident settlements lead to malpractice litigation — are viable, which could lead to more of them.
It also demonstrates the court’s general attitude around limitation-period defences for lawyers: “I think we can say that courts do not like to let lawyers use litigation periods to prevent claims against them. That seems to be a general trend.”
Update May 13: Clarification: A previous version of this article contained language that implied legal malpractice by Fern Silverman and Goldman Sloan Nash & Haber LLP. The Ontario Court of Appeal’s ruling deals only with the limitation period of the claim, and any other findings are yet to be determined at trial. The article was not meant to convey any finding of legal malpractice against Ms. Silverman or her firm. Legal Feeds apologizes for any misunderstanding.
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Ontario Court of Appeal Justice Gloria Epstein will have a cameo role in this year’s Nightwood Theatre’s annual The Lawyer Show.
|More than 40 lawyers will put on the Guys and Dolls musical next month in Toronto.|
“There was someone who is close to [Epstein] in the cast this year and so that individual approached [her] on our behalf,” says Beth Brown, managing director at Nightwood.
She adds Epstein’s role is so far being kept a secret and she will not join the rehearsals until it moves into the theatre down the road.
Mark Hart, vice-chairman of the Human Rights Tribunal of Ontario, is regular participant in the show. Other legal show guys and dolls come from private practice, government, and corporations.
It’s the first time The Lawyer Show is presenting a musical; in the past, the legal thespians performed Shakespearean plays like Twelfth Night and A Midsummer’s Night Dream.
Preparing for the musical has been different in a lot of ways, says Danny Kastner, a repeat participant.
“It’s a huge undertaking, much more than any of the shows we’ve done before. These musical and dance numbers I can tell you personally are grueling,” he says.
Set in prohibition era New York, Guys and Dolls is “a funny take on gangsters and the women in their lives,” says Kastner, who plays Nathan Detroit, a nervous gangster who makes a living by organizing underground gambling.
While some of the lawyers have backgrounds in acting and singing, others simply have the interest. They spend two months rehearsing lines, nailing down choreography, and fine-tuning their vocals. A paid, all-lawyer orchestra for the musical this year means a higher than usual number of lawyerly participants.
“There’s been a lot more technical training . . . but it’s also been incredibly fun, partly because this show is ridiculous and hilarious,” says Kastner.
“What’s so special about The Lawyer Show is that for all of us lawyers who are used to interacting with each other in serious context and very professional context, it’s a chance to work on something artistic and something silly,” he adds.
Tickets for the show and details on the cast and band are here.
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