ONSC Orders Inspection and Photographs of One-of-a-Kind Home in Copyright Infringement Case

ONSC Orders Inspection and Photographs of One-of-a-Kind Home in Copyright Infringement Case

Tan-Jen Ltd v Di Pede, 2015 ONSC 3685

This decision was released as part of a larger copyright infringement case about the copying of design aspects of what was supposed to be a one-of-a-kind home. The plaintiff, who supplied moulds and precast elements for the exterior of the property, alleged that the defendant homebuilder breached the supplier’s copyright in its design elements. [2] The homebuilder, on the other hand, counterclaimed that the supplier used the supposed one-of-a-kind moulds and precast elements on other homes, making the designs no longer one-of-a-kind and reducing the value in the home. [3] This decision did not resolve the overall legal dispute, but rather answered certain questions about what kind of evidence the supplier could obtain from the builder regarding the home and whether the case (and thus the one-of-a-kind design elements) would be made open to the public. Considering the significant value to the homebuilder that these design elements remain one-of-a-kind, one can imagine how questions regarding availability of evidence and publicity of the case would be of critical importance. In order to allow the supplier to argue its case, the Court allowed an inspection of the property. [9] In the interest of transparency in the civil justice system, the Court denied the homebuilder’s request that the case by sealed to the public. [21]

The Supplier’s Request for Documents was Denied

Although this case is about moulds and precast elements for the exterior of the property, the supplier requested documents regarding the home’s interior. This request came in response to the homebuilder’s allegation that certain design elements of the interior of the home influenced the design of the moulds and precast for the exterior. [6] The homebuilder’s allegation brings into question whether the supplier was the rightful owner of the copyright in the moulds and precast. As such, the supplier requested documents regarding the homebuilder’s interior.

The request was rejected, however, for lack of relevance, because the supplier was reading the homebuilder’s allegation too broadly. [6] The homebuilder only argued that certain drawings made between 2002 and 2004, and not the requested documents, influenced the design of the exterior moulds. [6] These drawings were already disclosed. The supplier was therefore asking for documents that were not relevant.

The Order to Inspect the Property and the Refusal to Seal the Case

The supplier was, however, able to obtain an order for inspection of the property by a real estate appraiser and an expert in interior design. [9] An inspection was relevant so that the supplier could argue against the homebuilder’s claim that the property suffered a loss in value as a result of the supplier using the supposed one-of-a-kind moulds on other properties. [10] Since the inspection was to be focused on the valuation of the property, rather than the copyright issue, an architect was disallowed from inspecting the property. [13]

Despite the homebuilder’s concern for the uniqueness of the property, the Court allowed photographs and other recordings of the property to be taken during the inspection. [17] The court’s reasoning was that the breach of copyright claim was merely an allegation at this point, and that the parties’ undertakings were sufficient to ensure that no harm to the homebuilder would occur as a result of the inspection. [17, 20]

The homebuilder’s request that the case be kept closed from the public was denied. [21] The homebuilder’s concern may have been that the property would be devalued even further if its unique design characteristics were made public, but this concern did not seem to factor into the Court’s stated reasons. The Court cited the importance that the civil justice system be as open and transparent as possible in its refusal of the request.


This case demonstrates how interlocutory and evidentiary issues can have significant impact on one’s value in their intellectual property, in practical terms, regardless of the theoretical merits of the case. This case is technically silent on the copyright claim, but one can see how the Court allowing inspection of the property, photographs to be taken, and the case to be open to the public, could greatly impact the homebuilder’s interest in the supposed one-of-a-kind home. This result underscores the importance of consulting with expert legal counsel at every stage of your legal dispute.