2021 FC, 2021 FC 1239

Date: 20211115 Docket: T-900-20 Citation: 2021 FC 1239 Ottawa, Ontario, November 15, 2021 PRESENT: Madam Justice Pallotta BETWEEN: THE TORONTO REGIONAL REAL ESTATE BOARD Plaintiff and IMS INCORPORATED C.O.B. AS RESTATS ALSO KNOWN AS REALITY, AND LEON Y. D’ANCONA Defendants ORDER AND REASONS I. Overview [ 1 ] The plaintiff and moving party, Toronto Regional Real Estate Board (TRREB), brings this motion under Rule 51 of the Federal Courts Rules , SOR/98-106 [ 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. [ 2 ] The CMJ determined the nature or " “pith and substance” " of TRREB’s claims against the defendants to be as follows: i . breach of its copyright under the Copyright Act , RSC 1985, c C-42 [ Copyright Act ] in the TRREB Multiple Listing Service system (TRREB MLS System), an online service that provides access to active real estate listings and other information to members of TRREB and its partner real estate boards; ii . breach of unspecified proprietary rights (which may be related to copyright), confidentiality, and TRREB’s Rules and Policies (terms and conditions) governing access to the TRREB MLS System; and iii . breach of TRREB’s privacy rights under the Personal Information Protection and Electronic Documents Act , SC 2000 c 5 [ PIPEDA ]. [ 3 ] The CMJ struck out the statement of claim as against Mr.

D’Ancona on the basis that TRREB failed to plead conduct that would attract personal liability. [ 4 ] The CMJ found it was plain and obvious that TRREB’s claims based on breach of the Copyright Act and PIPEDA cannot succeed.

With respect to copyright, the CMJ found that while there were defects that might be remedied with pleadings amendments or particulars, the real defect was that the Federal Court of Appeal (FCA) already decided that copyright does not subsist in the TRREB MLS System ( Toronto Real Estate Board v Commissioner of Competition , 2017 FCA 236 [ TREB v Commissioner of Competition ]) and the issue should not be relitigated. Furthermore, without establishing copyright, there can be no claim that the defendants gained access to the TRREB MLS System by circumventing technological protection measures, contrary to

section 41 of the Copyright Act . With respect to PIPEDA , the CMJ found the Court to be without jurisdiction because TRREB had not followed the complaint process under the statute before engaging the Federal Court. [ 5 ] With respect to the remaining claims, these were also struck out but the CMJ granted leave to amend. [ 6 ] TRREB does not appeal the CMJ’s order striking out the claims under PIPEDA or against the individual defendant, and it does not appeal the CMJ’s order regarding the remaining claims since the CMJ granted leave to amend them.

TRREB’s appeal relates solely to the CMJ’s order striking out the copyright claims without leave to amend. In this regard, TRREB argues that the CMJ (

i) failed to assume the facts in the statement of claim to be true, (ii) determined that no copyright subsists in the TRREB MLS System at issue in this action without evidence, based solely on a factual determination made in a different case, and (iii) failed to apply the presumptions of subsistence and ownership of copyright under

section 34.1 of the Copyright Act , which arise in any civil proceeding where the defendant puts those points in issue. [ 7 ] The defendant (IMS) argues that the CMJ’s decision to strike TRREB’s copyright claims contains no reviewable errors. TRREB’s " “threadbare and deficiently-pleaded” " copyright claims relate solely to the content of the TRREB MLS System, which the FCA found does not meet the originality threshold for copyright protection.

IMS argues it was open to the CMJ to find that TRREB’s copyright claims failed to disclose a reasonable cause of action. [ 8 ] 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. TRREB seeks an order granting leave to amend its copyright claims, and I am satisfied such an order should be granted. II. Preliminary Issue

[9] TRREB attempted to file written reply submissions in advance of the oral hearing in this matter.

IMS objected on the basis that leaveis required to file a written reply on a motion that will be heard orally, and leave was not sought or granted; IMS did not raise specificobjections to the content of TRREB’s written reply since it refused service and had not read the submissions. [10] TRREB responds that it prepared written reply submissions with the intention that they would be helpful to the Court and to IMS.However, TRREB decided not to contest the objection since the points could be made in oral submissions.

In view of TRREB’s position,and since I did not read the reply submissions because of IMS’s objection, I ruled that the written reply submissions would not beaccepted for filing. I have not read or considered TRREB’s written reply in reaching my decision. III.

Standard of Review [11] The standard of review on an appeal of a discretionary order of a prothonotary is palpable and overriding error for questions of factand questions of mixed fact and law, and correctness for questions of law and questions of mixed fact and law where there is anextricable legal principle at issue: Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215, at paras 64, 66[Hospira]; Housen v Nikolaisen, 2002 SCC 33 [Housen].

As noted by the FCA in Hospira at paragraph 64, "“discretionary orders ofprothonotaries should only be interfered with when such decisions are incorrect in law or are based on a palpable and overriding error inregard to the facts.”" [12] Reviewing courts should be cautious in finding an error of law, since it is often difficult to extricate a legal question from the facts:Housen at para 36. Where the legal principle is not readily extricable then the matter is one of mixed fact and law and subject to themore stringent standard: Ibid. The general rule is that, where the issue on appeal involves the

interpretation of the evidence as a whole,that

interpretation should not be overturned absent palpable and overriding error: Ibid. [13] The palpable and overriding error standard of review is highly deferential. When arguing palpable and overriding error, "“it is notenough to pull at leaves and branches and leave the tree standing. The entire tree must fall”": Mahjoub v Canada (Minister of Citizenshipand Immigration), 2017 FCA 157 at para 61 [Mahjoub], citing Canada v South Yukon Forest Corporation, 2012 FCA 165 at para 46.

Asnoted in Brauer v Canada, 2020 FC 828 at paragraph 17 [Brauer], a palpable and overriding error is one that is obvious, plainly seen andapparent, the effect of which is to vitiate the integrity of the reasons (citing Madison Pacific Properties Inc v Canada, 2019 FCA 19 atpara 26 and Maximova v Canada (Attorney General), 2017 FCA 230 at para 5). IV. Analysis A. The parties’ positions [14] TRREB submits the CMJ made two serious errors in striking out the copyright claims without leave to amend.

TRREB contendsthese errors warrant setting aside the order and allowing it to correct deficiencies in the pleading. [15] First, TRREB contends that the CMJ committed an error of law by applying the wrong legal test under Rule 221(

a) of the FC Rules.Rule 221(1)(

a) leaves no room for making findings of fact in a motion to strike a pleading on the ground that it discloses no reasonablecause of action, and the CMJ did not take the facts pleaded in the statement of claim to be true: Hunt v Carey Canada Inc, [1990] 2 SCR959 at 980, [Hunt]; Brauer at para 26; Arial v Canada, 2017 FC 270 at para 5. [16] TRREB states that its statement of claim specifically pleads the elements required to support a cause of action for copyrightinfringement, including that TRREB is the owner of copyright in the TRREB MLS System, that the TRREB MLS System is acopyrightable work, that this proprietary system is based upon decades of development (and continues to be further developed atsignificant annual cost), and that "“the manner of compilation of all the data is original and independently created and organized byTRREB, relying on a great deal of skill, judgment and labour in its overall selection and arrangement”".

Furthermore, the presumptionunder

section 34.1 of the Copyright Act operates to TRREB’s benefit. TRREB submits that the CMJ should have stopped at the point ofidentifying defects in the pleading that might be remedied with pleadings amendments or particulars, and she should have given TRREBan opportunity to remedy them. [17] Second, TRREB submits that IMS had the onus of establishing that TRREB’s copyright claims constitute an abuse of the Court’sprocess under Rule 221(1)(f), and IMS filed no evidence to support its arguments that the work at issue in TREB v Commissioner ofCompetition and the work at issue in this action are the same.

Section 2 of the Copyright Act defines a compilation as an original workthat is created as a result of selection or arrangement, and the "“or”" is disjunctive: Robertson v Thompson Corp, 2006 SCC 43 at para37. Despite pleading that TRREB has continued to develop its system over time, the CMJ assumed that the selection and arrangement ofTRREB MLS System are the same as the selection and arrangement for the component of TRREB’s system (namely, the database) atissue five years earlier in TREB v Commissioner of Competition.

By assuming facts based solely on the factual determination in TREB vCommissioner of Competition and "“without any admissible evidence or evidence received in accordance with the doctrine of judicialnotice”", TRREB submits the CMJ made a palpable and overriding error of fact or of mixed fact and law: Gray v Canada (AttorneyGeneral), 2019 FC 301 at para 54, citing Mahjoub at para 62. [18] TRREB relies on Apotex Inc v Pfizer Ireland Pharmaceuticals, 2011 FCA 77 [Apotex], where the FCA struck out a pleadingalleging that Apotex was barred from relitigating the validity of Pfizer’s patent.

The FCA noted that since the facts to inform an exerciseof discretion to prevent relitigation were not known, it was evident that "“at this stage, in this pleadings motion, it is not possible todetermine whether the discretionary bars of issue estoppel and abuse of process apply”": Apotex at paras 26, 28. [19] TRREB points to orders of the Federal Court and the Ontario Superior Court of Justice, post-dating the FCA’s decision in TREB vCommissioner of Competition, that have granted an interim injunction, default judgment or consent judgment based on infringement of

copyright in TRREB’s MLS system. It argues these orders demonstrate that its copyright infringement claims are not bound to fail, and TRREB should not be " “driven from the judgment seat” " : Hunt at 980. [ 20 ] TRREB submits the CMJ did not properly address whether TRREB’s copyright infringement claims constitute an abuse of the Court’s process under Rule 221(1)(f).

The abuse of process doctrine should only be invoked in the clearest cases ( Boily v Canada , 2019 FC 323 at para 70 [ Boily ]) and the CMJ did not properly assess whether it should be invoked in this case. [ 21 ] IMS argues that the CMJ did not make a legal error—she articulated and applied the correct legal tests for a motion to strike. Absent a legal error, " “the only road [to] travel is one in the direction of palpable and overriding error” " : Mahjoub at para 80 .

As the CMJ’s discretionary decision does not contain any palpable and overriding errors, IMS submits there is no basis for this Court to intervene. It is not the role of a reviewing court to substitute its own findings of fact and its own exercise of discretion for those of the CMJ: Mahjoub at para 79 . [ 22 ] IMS argues it was within the CMJ’s discretion to prevent relitigation of issues at the pleadings stage. The doctrine of abuse of process under Rule 221(1)(

f) engages the inherent power of the Court to prevent issues from being relitigated where doing so would be contrary to the integrity of the Court’s process and to the administration of justice, even if the requirements of issue estoppel and res judicata are not met: Toronto (City) v CUPE, Local 79 , 2003 SCC 63 , paras 37-38 and 42 [ CUPE ]; Mancuso v Canada (Minister of National Health and Welfare) , 2015 FCA 227 , paras 42-45 [ Mancuso ].

In Mancuso , the FCA wrote (at paragraph 43): Whether a particular issue has previously been judicially determined is a fact of which a judge is entitled to take notice at the early stage of a motion to strike. The fact of the other decision can form the foundation for the exercise of the judge’s discretion. Allowing the abuse of process doctrine to be raised at the pleadings stage is consistent with the objective of maintaining respect for the administration of justice and the court’s desire for comity and mutual respect between jurisdictions.

More practically, a defendant has the right to have an abusive claim struck before being subjected to an intrusive and costly discovery process.

While plaintiffs are not required to build into their pleadings a response to every conceivable defence, it is not unduly burdensome to expect plaintiffs who know they are relitigating a previously- determined issue to include in their pleadings the material facts they will rely upon to explain why the discretion to find the claim abusive should not be exercised. [ 23 ] IMS argues the CMJ essentially agreed with its arguments that the pith and substance of the claim was not copyright, that it was plain and obvious that the copyright claims did not disclose a reasonable cause of action, and constituted an abuse of process because they would relitigate the issue decided in TREB v Commissioner of Competition .

The work at issue in that case was the part of the MLS system that contains real estate listings, photographs and pricing—that is, the database—and TRREB pleaded that IMS has copied the content of the TRREB MLS System. A reasonable observer would wonder how IMS could infringe copyright in works that the FCA found are not entitled to copyright protection, thereby undermining the administration of justice. The CMJ " “saw right through TRREB’s argument” " that the works at issue are different, and she did not improperly consider evidence from the previous case.

The CMJ was not persuaded by TRREB’s argument that the FCA’s decision was for a different purpose, noting that TRREB had raised a positive defence before the Competition Tribunal based on copyright and had an opportunity—indeed an obligation—to put its best foot forward with evidence to make out its defence, and " “[e]ither there is copyright, or there is not” " . [ 24 ] According to IMS, Apotex is distinguishable for a number of reasons: (

i) that case involved a motion to strike allegations of res judicata , issue estoppel and abuse of process in a pleading, rather a motion to strike allegations in pleading based on those principles; (ii) the prior determination had been in a PM(NOC) proceeding, a unique type of patent litigation proceeding that is

summary in nature, without discoveries or live evidence; and (iii) the CMJ’s decision was not based on issue estoppel or res judicata . [ 25 ] IMS argues the orders granting TRREB default judgment or consent judgment must be approached with caution—the defendants in those cases did not challenge the subsistence of copyright in the MLS system. IMS contends that the defects in TRREB’s pleading are more substantial than properly pleading ownership; TRREB was required to plead a proper copyright claim, and

section 34.1 of the Copyright Act does not cure the pleading defects: Culhane v Croucher , 2009 FC 769 ; NAV Canada v Adacel Technologies Ltd , 2006 FCA 227 at para 8 ; Unipeixe-Exportadora de Peixe Limitada v J Gaspar & Fils Inc (No 2) , [1981] FC 648, 48 CPR (2d) 7 (FCTD) . B. Analysis [ 26 ] The CMJ provided one reason for striking TRREB’s copyright claims without leave to amend: the FCA has already decided that copyright does not exist in the TRREB MLS System, and that issue should not be relitigated. In my view, the CMJ struck the copyright claims pursuant to Rule 221(1) (

f) of the FC Rules , not Rule 221(1) (a). The CMJ did not identify a jurisdictional issue with the copyright claims, and she found that the other identified defects in TRREB’s copyright pleading might be remedied with pleading amendments or particulars. Therefore, I am not satisfied the CMJ committed an error of law by applying the wrong legal test under Rule 221(1) (

a) of the FC Rules , because she did not apply that test. [ 27 ] However, if I am mistaken in this regard, I would agree with TRREB that the CMJ committed an error of law by failing to take the facts pleaded in the statement of claim to be true for the purposes of Rule 221(1) (a). [ 28 ] Turning to Rule 221(1) (f), I agree with TRREB that the CMJ committed a reviewable error by striking out the copyright claims as an abuse of the Court’s process.

(1) Whether the copyright claims in this action would relitigate the same issue decided in TREB v Commissioner of Competition [ 29 ] First, the CMJ’s statement that the FCA has already decided that copyright does not exist, and " “[e]ither there is copyright, or there is not” " , necessarily assumes that the works in question are the same. There was no evidence before the CMJ on this point. Subject to judicial notice, the answer to a question of fact rests wholly on the evidence in a particular case and cannot be presumed to be true for

any situation outside the specific one before the trial court: R v Daley, 2007 SCC 53 at para 86. [30] The power to take judicial notice of facts which have not been proven in evidence must be exercised with care: Tsawwassen IndianBand v Delta (1997), (BC CA), 37 BCLR (3d) 276, 149 DLR (4th) 672 (CA) at paras 98-99 [Tsawwassen IndianBand].

Facts that could be reasonably questioned cannot be the subject of judicial notice: Tsawwassen Indian Band at para 102.Furthermore, caution is warranted where the use of a prior judicial precedent to ground a claim of judicial notice would permit a party tosubstitute precedent for proof (R v Levkovic, 2010 ONCA 830 at paragraph 48; aff’d 2013 SCC 25 without addressing this point): To permit prior judicial precedent to ground a claim of judicial notice of an adjudicative or legislative fact in a laterprosecution would permit a party, in effect, to sidestep the traditional rules governing the introduction and testing ofevidence, to dilute the standard required for judicial notice of facts and to substitute precedent for proof.

This use ofauthority harkens back to the protest of Mahoney J.A. in Canada (Human Rights Commission) v. Taylor, (FCA), [1987] 3 F.C. 593 (Fed.

C.A.), at p. 608 against "bootlegging evidence in the guise of authorities": Public SchoolBoards' Assn. (Alberta) [v Alberta (Attorney General), (SCC), [1999] 3 SCR 845, 180 DLR (4th) 670] atpara. 3. [31] 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 CMJcommitted a palpable and overriding error by finding that copyright does not subsist in the TRREB MLS System, based on the FCA’sdetermination in TREB v Commissioner of Competition. [32] In TREB v Commissioner of Competition, the issue that had been determined by the Competition Tribunal was whether TRREB’sinformation sharing practices substantially prevented competition.

Four types of information, forming a subset of data from TRREB’sdatabase and referred to as the "“disputed data”", were subject to restrictions and excluded from a data feed to brokers; the database ispart of the online MLS "“system”": TREB v Commissioner of Competition at paras 1-6, 60. [33] TRREB had raised a defence under subsection 79(5) of the Competition Act, RSC 1985, c C-34 that its data-sharing practices werean exercise of its intellectual property rights under the Copyright Act, and not anti-competitive.

The Competition Tribunal found thatTRREB did not lead sufficient evidence to demonstrate copyright in the MLS database, and even if it had, subsection 79(5) would notapply because TRREB’s conduct amounted to more than a "“mere exercise”" of its intellectual property rights: TREB v Commissioner ofCompetition at paras 33-34.

Based on the Competition Tribunal’s finding that the purpose and effect of the conditions attached to thedisputed data was to insulate TRREB’s members from competition, the FCA concluded that the purpose of TRREB’s asserted copyrightwas not "“only”" to exercise a copyright interest: TREB v Commissioner of Competition at paras 178-181. [34] The FCA also addressed the second alleged error—that the Competition Tribunal had applied the wrong test by requiring proof ofcreativity rather than originality.

The FCA agreed with TRREB on this point, but held it would reach the same result by applying thecorrect test for originality to the Competition Tribunal’s findings of fact: TREB v Commissioner of Competition at paragraphs 193-194. [35] The scope of judicial notice depends on the nature of the fact of which judicial notice is taken, and the centrality of that fact to adispositive issue in the litigation. If the fact is an adjudicative, as opposed to a legislative or social fact, the scope of judicial notice isnarrowed.

Similarly, if the fact is central to a dispositive issue, resort to judicial notice is restricted: R v Perkins, 2007 ONCA 585 at para38; R v Spence, 2005 SCC 71.

In this case, the fact was an adjudicative fact that was clearly central to a dispositive issue in this action.Indeed, a finding that relitigating copyright infringement based on its system constitutes an abuse of process could even extend beyondthis action, and restrict TRREB’s ability to institute new proceedings for copyright infringement. [36] In my view, the CMJ committed a palpable and overriding error by relying on the FCA’s decision to find that TRREB is relitigatingthe same issue in this action.

Whether a work meets the originality threshold is a finding of mixed fact and law and depends on theapplication of facts to a legal test. The FCA’s determination in this regard was based on the Competition Tribunal’s factual findings,which in turn were based on a specific evidentiary record before it. The proceeding before the Competition Tribunal related to "“disputeddata”" from the MLS database, five years prior to this action.

The record before the FCA was not before the CMJ and there is no way toknow if the evidentiary basis for the FCA’s determination would be the same in this action. [37] While the orders post-dating the FCA’s decision in TREB v Commissioner of Competition that have granted an interim injunction,default judgment or consent judgment are not determinative, they nevertheless form part of the overall circumstances that should betaken into account. Four judges in three actions have issued orders that were based on TRREB’s copyright in its MLS system.

Theinterim injunction was premised, among other things, on evidence filed in support of that motion regarding TRREB’s ownership of thecopyrights and proprietary interests in its MLS system. Two of the default judgment orders are Federal Court orders, which meansTRREB was required to lead evidence to establish its allegations and its entitlement to relief—in the Federal Court, the failure to file astatement of defence operates as a deemed denial of the allegations in the statement of claim.

Indeed, the default judgment order in courtfile T-898-20 states, at paragraph 13, "“[b]ased on the evidence filed with the Court, I am satisfied that the Plaintiff [TRREB] has, primafacie, established subsistence of copyright in the TRREB MLS® System and ownership of that copyright.

The Plaintiff has obtainedcopyright registrations for the TRREB MLS® System for each of the years 2015 to 2021.”" That order expressly refers to TREB vCommissioner of Competition, noting that another judge had considered the defendant’s reliance on the decision in response to TRREB’smotion for an interlocutory injunction, but nonetheless found TRREB had established a serious issue of copyright infringement. WhileIMS argues that the defendant in T-898-20 has moved to set aside the order granting default judgment, in my view the judge’s findingsremain relevant to the issue that is before me.

These orders support TRREB’s position that its copyright infringement claims are notbound to fail, and TRREB should not be "“driven from the judgment seat”": Hunt at 980. [38] As the moving party on the motion to strike, IMS had the onus to prove that TRREB was relitigating the same issue. Relying on thedetermination in TREB v Commissioner of Competition without, at a minimum, evidence that the same works were at issue in bothproceedings, permitted IMS to "“substitute precedent for proof”".

(2) Whether relitigation would constitute an abuse of process

[ 39 ] Second, even if TRREB were relitigating the same issue, I agree with TRREB that the CMJ did not properly address whether asserting copyright claims in this action constitute an abuse of the Court’s process under Rule 221(1) (f). [ 40 ] The doctrine of abuse of process under Rule 221(1)(

f) is an important tool for several reasons, for example, it provides a means to have an abusive claim struck out at an early stage in the proceeding, before a defendant is subjected to an intrusive and costly discovery process: Mancuso at para 43 .

As IMS correctly notes, the attraction of the doctrine of abuse of process is that it is flexible, and unencumbered by the strict requirements of res judicata , issue estoppel, and collateral attack: CUPE at paras 37-38 and 42 ; Mancuso at paras 39-40 . [ 41 ] However, bars against relitigation are discretionary, and the discretion must be exercised taking into account a wide variety of circumstances: Apotex at para 19 .

There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, and barring relitigation through the doctrine of abuse of process can create unfairness in certain circumstances ( CUPE at paras 52-53 ): [52] …There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.

This was stated unequivocally by this Court in Danyluk , supra , at para. 80. [53] The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness.

If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail.

An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision ( Danyluk , supra, at para. 51; Franco , supra, at para. 55) [ 42 ] The CMJ’s order does not indicate that considerations such as whether relitigation would enhance the administration of justice or create an unfairness in this case were taken into account.

These considerations might include differences in the nature of the proceedings, the fact that IMS was not a party to the prior proceeding, and that TRREB was defending allegations made against it. As noted above, the doctrine of abuse of process should only be invoked in the clearest cases: Boily at para 70 . In my view, the CMJ’s order does not address whether the doctrine should be invoked in this case, and I am not persuaded that it should. [ 43 ] In

summary, the CMJ’s order demonstrates a palpable error in that the finding that the FCA has already decided that copyright does not exist in the TRREB MLS System was made without evidence or a proper exercise of judicial notice. 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). V.

Conclusion [ 44 ] The Rule 51 motion appealing the CMJ’s order is granted, and the order is set aside in part. TRREB does not appeal the CMJ’s order striking out the claims under PIPEDA or against the individual defendant, and it does not appeal the CMJ’s order regarding the remaining claims since the CMJ granted leave to amend those claims. Those aspects of the order stand.

In addition, TRREB is granted leave to amend the copyright claims. [ 45 ] If the parties cannot agree on costs, TRREB shall deliver written submissions within 15 days of this decision and IMS shall deliver written submissions within 15 days of receiving TRREB’s submissions. Each party’s submissions shall be five pages or less, not including any draft bill of costs or list of authorities. As part of their submissions, the parties may address whether the CMJ’s cost order should be set aside in whole or in part. ORDER in T-900-20 THIS COURT ORDERS is that : 1 .

This Rule 51 motion appealing the CMJ’s April 7, 2021 order is allowed; 2 . The April 7, 2021 order is set aside to the extent that it strikes out the copyright claims without leave to amend; 3 . The April 7, 2021 order grants leave to amend TRREB’s statement of claim in part, and that aspect of the order is undisturbed; in addition, TRREB is hereby granted leave to amend its statement of claim as it relates to the copyright claims; and 4 . Costs remain to be determined. "Christine M. Pallotta" Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-900-20 STYLE OF CAUSE: THE TORONTO REGIONAL REAL ESTATE BOARD v IMS INCORPORATED, C.O.B. AS RESTATS ALSO KNOWN AS REALITY AND LEON Y. D’ANCONA PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE DATE OF HEARING: AUGUST 10, 2021 ORDER AND REASONS: PALLOTTA J. DATED: NOVEMBER 15, 2021 APPEARANCES : Carol Hitchman Kevin Fischer For The PLAINTIFF Jessica Zagar Casey Chisick For The DEFENDANTS SOLICITORS OF RECORD : Sprigings Intellectual Property Law Etobicoke, ON Gardiner Roberts LLP Barristers and Solicitors Toronto, Ontario For The PLAINTIFF Cassels Brock & Blackwell LLP Barristers and Solicitors Toronto, Ontario For The DEFENDANTS