Law Times

Law Times • January 21, 2013 B Page 7 COMMENT New premier faces huge mountain y the end of this weekend, Ontario will have a new premier. The betting puts Kathleen Wynne and Sandra Pupatello as the front-runners out of the six candidates still standing. Nothing is a sure bet, but if that premise holds, Ontario will be on its way to having its first female premier by default. It will be even more groundbreaking if Wynne wins as she'll be Canada's first openly lesbian premier. Thankfully, her sexuality hasn't been an issue, unlike her 2000 campaign for Toronto District School Board when critics labelled her an "extremist lesbian." Voters, however, might worry more about her closeted NDP leanings. If Wynne takes the helm of the minority Liberals, NDP Leader Andrea Horwath has telegraphed she's eager to work with the new premier. It would be a Wynne-win for both since it would put NDP policies on the front burner and keep the Liberals in power. Still, it would be short-term gain for long-term pain. Former Canadian Auto Workers president Buzz Hargrove, who isn't a card-carrying Liberal but has said he'd support Pupatello, last week warned that the continuing action by teachers over Bill 115 has exasperated the public and will only serve to push voters closer to Progressive Conservative Leader Tim Hudak. He might as well have added that an NDP-Liberal coalition, if it acts leader to fashion a throne stridently on a left-leaning meet the agenda to raise taxes and add Queen's speech and possibility house and face the of beto the deficit and debt, will Park ing defeated and then asking have the same effect. Wynne the lieutenant-governor for has since downplayed the dissolution." idea, but it persists and a LibIt's a scenario that he says eral spin-doctor has hinted could favour Wynne since on his blog that there's a plan delegates may worry about to that effect under somethe optics of having a premier thing he termed Operation standing only in the public Snowball. gallery in the event Pupatello On the other hand, would Ian Harvey wins. Veteran Queen's Park Premier Pupatello be more observer Graham Murray of likely to lean right and work with Hudak? That's a stretch since the G.P. Murray Research Ltd. concurs. "It's hard-right component of the Conserva- necessary to have the support of the partive caucus is driving the Hudak agenda ty but you wouldn't want to go on withand whatever Pupatello agrees to will out a seat too long," he says. Still, centre-right candidate Pupatello likely never be enough. The other hiccup is that if Pupatello might want to rethink Windsor-Tecumwins the leadership, she has to win a seh as a safe seat. It has been NDP federseat. While her friend Finance Minister ally since its creation in 2004. ProvincialDwight Duncan says he'll step down in ly, it has been Liberal, but with Duncan Windsor-Tecumseh, there's no guaran- gone, will voters go for the party or the tee she'll win. Former Conservative lead- candidate? The other factor is that Ontario's er John Tory lost in 2007 when he chose his home riding of Don Valley West and unions, especially the teachers, are furious over Bill 115 and, as they did successran against Wynne. While you don't have to have a seat to fully in last year's Kitchener, Ont., byelecbe premier, it's a huge barrier in the long tion, could be out in force to campaign term. "There is no formal law on the of- vociferously for the NDP candidate. And fice of prime minister or premier," notes Windsor is a strong union town. Barring an NDP-Liberal agreement, constitutional law expert Peter Russell. "However, the situation is complicat- the other betting line is for a spring or ed by the need for the new Liberal party summer general election. But there's a line of thinking that suggests the Liberals will not only hang on if pushed to a general election but could actually win a majority under either Pupatello or Wynne because Hudak's campaign team isn't up to the fight. Nevertheless, underestimating Hudak may well play to his advantage. To be sure, Hudak isn't a guaranteed winner and he has some baggage of his own. He's not wasting time, however, and has been ramping up the rhetoric, most recently by launching a webinar titled "When the money runs out" and rolling out an election-style tour through southern Ontario cities to hammer home his message. He does have some ammunition in his key talking points. With 500,000 unemployed Ontarians, a deficit bigger than all other provinces' shortfalls combined, the potential for higher interest rates to send debt-servicing costs higher, and a public-sector payroll that eats half of the provincial budget, Ontario is now a have-not province, he emphasizes. That's an awful lot of baggage and with almost no room to wiggle financially, it makes the mountain ahead seem even larger. LT uIan Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. Teranet on a roll with legal, business successes W hile the holidays are now over, Christmas seemed to have come early to Teranet Inc., the owner and operator of Teraview, Ontario's electronic land registration software system. A subsidiary of Borealis Infrastructure, which in turn is an arm of the Ontario Municipal Employees Retirement System, Teranet last hit the headlines when it secured a renewed monopoly with the province of Ontario at the end of 2010 for the administration of the electronic land registration service for another 50 years. With almost six million real property parcels already digitized and electronically registered in Ontario, Teranet then set its sights outwards for new lands to digitally conquer and register. As its first such conquest after securing the monopoly, Teranet recently announced it had won the exclusive rights to the property registration system for the province of Manitoba. In a 30-year deal said to be worth $75 million upfront to the province, Teranet expects to earn royalties of approximately $11 million in 2013, a number projected to increase to $24 million by 2043 when the licensing exclusivity ends. According to the CBC's coverage of the pre-Christmas press conference with Teranet president and CEO Jay Forbes and Manitoba Finance Minister Stan Struthers, Teranet would be investing more than $35 million in systems, software development, and upgrades tell in both provinces. while the provincial As if the Manitoba government mainThe Dirt deal wasn't enough to tains the authority fill Teranet's stockto set rates paid from ings, the company time to time by cusreceived another gift tomers for land regin time for Christmas, istration services. As this one from the Onpart of the agreement, tario Superior Court up to 140 provincial of Justice. Teranet had government employbeen the subject of a ees will transfer to TerJeffrey Lem lawsuit from its own anet and all property registry offices will, at least for the surveyors in a $50-million class action proceeding, Keatley Surtime being, remain open. Of course, if Ontario is any veying Ltd. v. Teranet Inc. In its claim, Keatley brought example, the likelihood of local registry offices remaining open for suit for and on behalf of all Onany prolonged period after the im- tario land surveyors for copyplementation of the Teraview in- right infringement under the frastructure is low. There are sim- federal Copyright Act for all of ply no more land registry offices the drawings as well as the refin the province of Ontario, at least erence, subdivision, and condoin the traditional sense, and there's minium plans stored in Teraan entire generation of real estate view (and in a similar Teranet solicitors here who are growing up data access portal called GeoWarehouse that would likely be without the benefit of them. This isn't necessarily a bad popular with real estate agents, thing. The reality is that once the planners, and municipalities) digitization of existing records for which Teranet charged a fee and the conversion of current titles for retrieval and transmission. are complete, a bricks-and-mortar The claim was based in large part repository for real estate records on a fairly recent High Court of in each county or judicial district Australia decision in Copyright is simply redundant. Of course, Agency Ltd. v. State of New South access remains an issue of vital Wales that provided some copyimportance to practitioners, here right protection for Australian in Ontario and no doubt in Mani- surveyors under certain circumtoba as well, and the challenge lies stances under the comparable in providing it in an effective man- Australian legislation. Teranet's Eric Black confirms ner that's as good, if not better, than the support that would have that the Ontario Superior Court been available with administrative released its decision almost the staff at the local land registry of- same day as the announcement of fice standing behind a countertop the Manitoba deal and notes the during working hours. Time will ruling resoundingly rejected the www.lawtimesnews.com certification of the class under the Class Proceedings Act. In an extremely detailed and well-written decision, the court rejected certification of the class due to concerns over a "meritsbased class definition." In other words, to be a class member, a surveyor had to be a "holder of copyright" in a plan of survey that was in Teranet's system, but the underlying issue of the litigation was whether or not any such surveyor did in fact "hold the copyright" in such plans and drawings. "The law is clear that a class must be defined without elements that require a determination of the merits of the claim. . . . Membership in Keatley's proposed class definition depends on the outcome of the very issue in dispute at the heart of this action," wrote Justice Carolyn Horkins. I'm not aware of any appeal in progress, but even if the decision isn't appealed, I should note that the failure of the plaintiff surveyor to certify the claim as a class proceeding is only an interlocutory step and doesn't actually end the litigation risk per se. That said, as is the case with all of these sorts of claims, the failure to certify as a class proceeding is a material and practical impediment to plaintiff recovery. As such, there was no doubt a long and palpable collective sigh of relief at the Teranet offices after the release of the decision. Christmas did indeed come early to Teranet. LT uJeffrey W. Lem is a partner in the real estate group at Miller Thomson LLP. His e-mail address is jlem@millerthomson.com.

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