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Jessica Zagar and Casey Chisick Bring Successful Motion to Strike Copyright and Privacy Claim in its Entirety


On April 7, 2021, the Federal Court struck in its entirety a claim by the Toronto Regional Real Estate Board against two Cassels clients, a company specializing in the analysis of real estate statistics and its directing mind.

TRREB commenced an action seeking various declarations, injunctions, mandatory orders, damages, and accounting arising from the defendants’ alleged unauthorized access and use of the TRREB Multiple Listings System (MLS). TRREB claimed copyright in the MLS System and sought relief for copyright infringement and circumvention of technological protection measures under the Copyright Act. It also sought relief for alleged breaches of the Personal Information and Electronic Documents Act (PIPEDA), as well as for alleged breaches of proprietary rights, confidentiality, and the Rules and Policies governing access to the MLS System.

The defendants argued that the Federal Court lacked the jurisdiction to hear the claim and that the claims should be struck for failure to disclose a reasonable cause of action. In the alternative, they argued that the claims were an abuse of the process of the Court.

The Court held that it was plain and obvious that TRREB’s claims could not succeed. As a statutory court, the Federal Court can only hear claims within its specific jurisdiction. Both the Copyright Act and PIPEDA are bodies of federal law over which the Federal Court has jurisdiction. However, the Court determined those claims could not succeed.

On the copyright claim, the Court held that the Federal Court of Appeal had already determined in Toronto Real Estate Board v. Commissioner of Competition, 2017 FCA 236, that there is no copyright in the TRREB MLS System. The Court found that the FCA decision was binding and TRREB was not entitled to relitigate the issue just because it arose in the context of competition law and not copyright infringement. Without copyright, there could be no valid claim for circumvention of technological protection measures.

On the privacy issue, the Court found that TRREB had failed to follow the statutory process for bringing a claim under PIPEDA and that, as a result, the Federal Court was without jurisdiction to deal with TRREB’s complaint.

The Court held that the rest of the causes of action alleged (breach of other proprietary rights, breach of confidentiality, and breach of TRREB’s MLS Rules and Policies) appeared to be claims premised in contract or tort and were therefore outside the scope of the Court’s jurisdiction. Finally, although not necessary for the purposes of the motion, the Court agreed that the claim against the personal defendant was improper and should be struck as well.

The Court granted the motion in its entirety with costs in the defendants’ favour. Cassels represented the defendants.

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