Judge finds tutoring services’ questions seeking university's legal position improper at discovery stage
In a copyright infringement proceeding, Canada’s Federal Court saw no palpable and overriding error in a motions judge’s ruling that two disputed questions sought a position on a legal issue or argument, which were inappropriate at the discovery stage.
In Governing Council of the University of Toronto v. Easy Group Inc. (Easy Education), 2025 FC 1728, the University of Toronto and three professors filed the underlying copyright infringement claim against the defendants, a group of companies offering tutoring services to the university’s Mandarin-speaking students.
The plaintiffs alleged that the defendants, without authorization, reproduced and distributed their original course materials – including lecture slides, syllabi, notes, and exams – for their tutoring business, thus breaching their copyright under the Copyright Act, 1985.
The plaintiffs’ counsel created a draft infringement table as an assistive aid before the discoveries. The table contained columns identifying page numbers from the plaintiffs’ university course material and the corresponding pages where the material allegedly appeared in the defendants’ course packs.
The defendants denied infringement. They asserted a fair dealing defence and a counterclaim for damages for false and misleading statements under the Trademarks Act, 1985, and false or misleading public representations under the Competition Act, 1985.
On Feb. 8, 2024, the judge dealing with the motions to compel issued an order concerning topics and questions relating to the plaintiffs’ asserted works and draft infringement table. Specifically, the motions judge declined to compel the plaintiffs to answer two disputed questions:
- Match, element-by-element, the portions of the purportedly infringed document with portions of the purportedly infringing document
- Provide the portion of the page, and of the document, that the university asserted was copied
The defendants appealed the judge’s order.
Refusal to compel upheld
The Federal Court dismissed the defendants’ motion and ordered them to pay the plaintiffs $5,750 in costs, including disbursements and taxes.
The court accepted that the defendants understandably wanted more details about the plaintiffs’ infringement claims and that questions about allegations of infringement and fair dealing involved factual questions.
However, the court held that the actual wording and context of the disputed questions supported the motions judge’s analysis.
The court found that the judge understood the difference between disguised fact and argument, appropriately cited case authorities tackling this distinction, and properly stated and applied the test for copyright infringement to the disputed questions.
Lastly, the defendants alleged that the judge committed a legal error when ignoring their fair dealing defence when determining whether the disputed questions were relevant.
The court noted that the defendants acknowledged that the judge addressed the law requiring the assessment of relevance in connection with all pleadings and mentioned the fair dealing defence elsewhere in his order.
The court pointed out that the defendants did not raise the relevance of the disputed questions to their fair dealing defence in their motions to compel.
