Executive Summary: Key Legal and Evidentiary Issues

• TRREB brought a motion seeking specific particulars of allegations in IMS's Statement of Defence and Counterclaim in a copyright infringement dispute over the TRREB MLS System.

• IMS's defences included denial of infringement of copyright, an alleged implied license from TRREB, and in the alternative, acquiescence by TRREB to IMS's impugned copyright infringing acts.

• Central to the motion was whether IMS's pleadings contained sufficient material facts or merely stated legal conclusions, particularly regarding the involvement of TRREB directors and presidents.

• The Court applied the two-part test from Throttle Control: whether the requested particulars constitute material facts (not evidence) and whether they are necessary for TRREB to respond to the pleading.

• Certain requests were denied as seeking information already within TRREB's knowledge or as constituting a "fishing expedition" without a proper factual basis.

• No costs were awarded to either party given the divided success on the motion.

The underlying copyright dispute

The Toronto Regional Real Estate Board ("TRREB") commenced an action in the Federal Court of Canada (Docket T-900-20) against IMS Incorporated, carrying on business as RESTATS, also known as REALITY ("IMS"), alleging various breaches of copyright. TRREB's Amended Fresh as Amended Statement of Claim, filed on July 18, 2022, formed the foundation of the copyright infringement allegations. IMS subsequently filed its Statement of Defence and Counterclaim on February 14, 2025, raising defences that included a denial of infringement of copyright, an implied license from TRREB or, in the alternative, acquiescence by TRREB to IMS's impugned copyright infringing acts.

TRREB's motion for particulars

Following the filing of IMS's defence, TRREB sent a Demand for Particulars to IMS. IMS provided answers to some of those demands but refused or, according to TRREB, deficiently answered others. TRREB then brought a motion before Associate Judge Michael D. Crinson seeking those outstanding particulars, arguing they were necessary for TRREB to intelligibly plead over. The motion was heard on May 2, 2025, in Toronto, Ontario, and the Order and Reasons were issued on April 15, 2026.

Categories of particulars requested

TRREB's requests for particulars fell into three broad categories. The first involved the identification and particulars of the "directors and presidents" who allegedly "acquiesced" or granted an "implied licence" to IMS to infringe TRREB's copyright. The second concerned the identification and particulars of the actions taken by those "directors and presidents" that allegedly constituted acquiescence or the granting of an implied licence to IMS to infringe TRREB's copyright. The third sought identification and particulars of the allegedly "entirely lawful means" through which TRREB gains access to the TRREB MLS System. These requests spanned several paragraphs of the Defence and Counterclaim, including paragraphs 5, 7, 9, 10, 11, 40, and 46.

The legal framework applied by the Court

Associate Judge Crinson grounded his analysis in the established principles governing pleadings and particulars under the Federal Courts Rules. The Court noted that the purpose of pleadings in an action is to define the issues in dispute between the parties for the purposes of documentary and oral discovery and ultimately trial. Citing Leonard v. Canada, 2022 FCA 195, the Court reiterated that pleadings must state material facts, not mere conclusions of law, and must do so concisely. The Court further cited Throttle Control Tech Inc. v Precision Drilling Corporation, 2010 FC 1085, outlining that the purposes of particulars include informing the opposite party of the case to meet, focusing allegations, limiting issues for discovery and trial, and preventing surprise. An earlier decision in this same proceeding, Toronto Regional Real Estate Board v. IMS Incorporated (RE Stats), 2024 FC 1537, was also referenced, which established that the scope of permissible requests for particulars is narrower at the pleading stage and that fishing expeditions are inappropriate.

The Court's ruling on naming directors and presidents

Applying these principles, the Court found that TRREB was entitled to the names of each of the TRREB directors and/or presidents alleged to have had direct knowledge of IMS's activities, to have referred other TRREB members to become new subscribers of REality, through whom TRREB allegedly had direct knowledge of IMS's activities, to have encouraged IMS's business activities, and to have had personal subscriptions to REality. The Court reasoned that the allegations in the pleading should have sufficient focus to inform TRREB of the case it has to meet, and identifying the specific individuals was necessary to achieve that objective.

Remaining requests relating to directors and presidents denied

However, the balance of TRREB's requests for particulars relating to paragraphs 5, 7, 9, 10 and 11 were denied. The Court held that these were for information within the knowledge of TRREB, specifically within the knowledge of the TRREB directors and/or presidents referred to in those paragraphs. TRREB had not established on the record that it required the additional requested particulars in order to know the case it had to meet when considered in the context of the totality of the allegations and knowing the identity of its own TRREB directors and/or presidents. These remaining requests were found not necessary for pleading and were not ordered at the pleadings stage.

Paragraph 40: "lawful means" of access ordered

Regarding paragraph 40 of the Statement of Defence and Counterclaim, the Court found that IMS's pleading — "Rather, IMS accesses the TRREB MLS System through entirely lawful means" — does not satisfy Rule 183 as it does not materially plead a version of facts but merely pleads a conclusion. Accordingly, IMS was required to provide the particulars of the "lawful means through which IMS accesses the TRREB MLS System" in order to meet its requirements to plead the material facts.

Paragraph 46: "influence" allegation deemed a fishing expedition

As for paragraph 46 of the Statement of Defence and Counterclaim, the Court found that the allegation was sufficiently pleaded in the circumstances of this proceeding. The request for particulars regarding paragraph 46 was, in effect, seeking information that TRREB already has — "how does TRREB leverage its influence over Toronto real estate agents and brokers." The Court characterized this request as equivalent to a fishing expedition, to determine if there is a factual basis for a potential defence. It was found not appropriate and was not ordered to be provided.

Outcome and costs

The motion resulted in divided success. IMS was ordered to provide the names of the relevant TRREB directors and presidents across the specified paragraphs and the particulars of the lawful means through which IMS accesses the TRREB MLS System, with service due by April 22, 2026. TRREB was then given 20 days from the service of those particulars to serve and file its Reply and Defence to Counterclaim. The motion was otherwise dismissed. No costs were awarded for this motion. No specific monetary amount was ordered or awarded in this decision, as it was a procedural motion concerning the adequacy of pleadings rather than a determination on the merits of the underlying copyright dispute.