IMS Incorporated v. Toronto Regional Real Estate Board, 2023 FCA 70

Justice Mactavish; Justice Gleason; Justice Monaghan - 2023-03-28

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The appellants, collectively, IMS, appeal from 2021 FC 1239. In that order, the motion judge overturned a portion of an earlier unreported speaking order, issued on April 7, 2021 in T-900-20 by Prothonotary Milczynski (whom I term the prothonotary, as that was the applicable title at the time the order in issue in this appeal was rendered). In her order, the prothonotary, who was acting as the case management judge, struck out the statement of claim of the respondent, Toronto Regional Real Estate Board (TRREB), with leave to amend certain claims that are not relevant to this appeal. ... From the foregoing, it is apparent that the requisite assessment involves consideration of the particular work in question and that originality can only be determined on a case-by-case basis. As this Court noted at paragraph 185 of TREB v. Canada 2017 FCA 236, the determination of whether a work is sufficiently original to be copyrightable is “… a highly contextual and factual determination.” I therefore conclude that the motion judge did not err in holding that the portion of the prothonotary’s order at issue in this appeal was premised on the determination that the works at issue in this action were the same as the works at issue in TREB v. Canada.

Decision relates to:


Canadian Intellectual Property