Toronto Regional Real Estate Board v. IMS Incorporated, 2021 FC 1239
Justice Pallotta - 2021-11-15
Read full decision. Summary prepared by Alan Macek:
The plaintiff and moving party, TRREB, brings this motion under Rule 51 of the FC Rules to appeal Case Management Judge Milczynski’s (CMJ) April 7, 2021 order. The CMJ granted the defendants’ motion to strike TRREB’s statement of claim for lack of jurisdiction and abuse of the Court’s process under Rules 221(a) and (f) of the FC Rules, and struck out TRREB’s statement of claim in its entirety, with limited leave to amend. ... As I will explain below, I find TRREB has established a reviewable error that warrants reversing the order striking its copyright claims without leave to amend. Accordingly, the appeal is allowed. ... The CMJ’s order does not explain a basis for taking judicial notice that the works in issue are the same, and in my view, the CMJ committed a palpable and overriding error by finding that copyright does not subsist in the TRREB MLS System, based on the FCA’s determination in TREB v Commissioner of Competition 2017 FCA 236. ... Furthermore, the finding that the issue should not be relitigated was made without assessing whether the doctrine of abuse of process should be invoked in this case. In my view, these errors are overriding because the findings are the only reason for striking out the copyright claims without leave to amend, based on an abuse of the Court’s process under Rule 221(1)(f).
Decision relates to:
- T-900-20 - THE TORONTO REGIONAL REAL ESTATE BOARD v. IMS INCORPORATED C.O.B. AS RESTATS
- A-330-21(2023 FCA 70) - which is an appeal from this decision