Court File No.

_____________
(Court File No. 13-57387)

COURT OF APPEAL FOR ONTARIO

B E T W E E N:

TANYA WOODS and 2285675 ONTARIO INC.

Plaintiffs (Appellants)

-and-

UNIVERSITY OF OTTAWA

Defendant (Respondent)

NOTICE OF APPEAL

THE PLAINTIFFS APPEAL to the Court of Appeal from the final order of Mr. Justice C.
MacLeod of the Superior Court of Justice dated August 27, 2021, made in Ottawa.

THE APPELLANTS ASK that the Judgment be varied as follows:

1. Increasing the damages awarded to the Appellants from the amount of $328,396.82 to the

amount of $2,364,440.20;

2. In the alternative, increasing the damages awarded to the Appellants from the amount of

$328,396.82 to a greater amount including a 5% share of all Counsel Administration Fees

collected (and to be collected) by counsel in the class action litigation; and

3. Further, and/or in the alternative, increasing the damages awarded to the Appellants by a

total of $11,540.68.
THE GROUNDS OF APPEAL are as follows:

1. The learned trial Judge erred in denying the Appellants 5% of the fees for legal services

rendered by the class action counsel in administering the settlement (“Additional Counsel

Fees”), insofar as:

a) He wrongly concluded that the Additional Counsel Fees were not covered by the

agreement between the Appellants and the Respondent (the “Agreement”), despite it

stating at s. 4(b) that the Appellants were entitled to 5% of the “legal fees…”

“generated by the lawsuit”; and

b) He misconstrued the Agreement by assuming that the Appellants’ entitlement to a

portion of the Additional Counsel Fees turned on what the Respondent was entitled

to under its separate contract with the class counsel, when that is not what the

Agreement says at s. 4(b).

2. The learned trial Judge erred in miscalculating the amount owed to the Appellants by the

Respondent under the terms of the Agreement, insofar as:

a) He wrongly assumed that the Appellants’ entitlement to “not less than 5% of the

legal fees which include pre and post judgment interest and tax that are generated by

the lawsuit” was equal to exactly a half share of the amount received by the

Respondent from the class counsel under their separate contract, even though the

amount recovered by the Respondent was subject only to GST, while the amount

actually received by class counsel was subject to both GST and HST; and

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 b) The foregoing wrong assumption resulted in the Appellants being short-changed by a

sum of $11,540.68, which is the Appellants’ 5% share of the HST paid to class

counsel.

3. The learned trial Judge erred in failing to award the Appellants unpaid disbursements,

despite the Agreement entitling them to same.

4. The learned trial Judge erred in concluding that the Appellants were only entitled to the

minimum percentage of legal fees prescribed in the Agreement, without considering or

properly assessing whether or not the work they undertook entitled them to a greater share.

5. The learned trial Judge erred in failing to enforce the express provisions of the Agreement,

despite concluding that it was enforceable, or to give reasons explaining why he deviated

from those provisions, particularly s. 4(b).

6. The learned trial Judge erred in failing to consider or apply the appropriate legal test for

deviating from the express provisions of the Agreement, which he concluded was

enforceable.

7. The learned trial Judge erred in finding that there was no solicitor-client relationship between

the Appellants and the Respondent insofar as:

a) He applied an overly narrow, incomplete, or restrictive legal test on the question of

there being a solicitor-client relationship, focusing exclusively on whether or not the

Appellants sought “legal advice” from the Respondent;

b) He failed to consider or address whether or not the Respondent performed legal

services on behalf of the Applicant; and

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 c) He misconstrued the basis for the solicitor-client relationship, focusing on whether or

not the Appellants retained the Respondent to represent them in a class action, when

the real issue was representation for the purposes of negotiation of a share of the

contingency fee earned by counsel in the class action.

8. The learned trial Judge erred in finding that there was no agency relationship between the

Appellants and the Respondent insofar as:

a) He failed to consider or apply the correct legal test concerning the existence of an

agency relationship;

b) He applied an overly narrow, incomplete, or restrictive legal test on the question of

agency; and

c) He failed to consider all of the pertinent evidence concerning agency.

9. The learned trial Judge erred in failing to find negligence on the part of the Respondent

insofar as:

a) He failed to consider or apply the correct legal test concerning the existence of a duty

of care between the Appellants and the Respondent;

b) He applied an overly narrow, incomplete, or restrictive legal test on the question of

negligence.

c) He failed to find the Respondent negligent, despite concluding that “it did not have a

clear policy governing the intellectual property rights of students conducting research

for academic credit” and entered into the agreement “without any formal approvals

and with minimal documentation”; and

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 d) He failed to find a causal connection between the Respondent’s alleged negligence

and the Applicants’ failure to secure a better deal from class counsel for a greater

share of the proceeds of the class action, despite finding that “with the benefit of

hindsight, clear policies, crisper contractual language, written releases and

independent legal advice might have avoided this dispute”.

10. The learned trial Judge erred in failing to fully recognize the Appellants’ copyright in the

materials authored by Tanya Woods (“the Works”) that were incorporated into the class

action litigation, insofar as:

a) He wrongly concluded that there is no copyright in draft pleadings and other

Works, when copyright in these documents is clearly established in law;

b) He wrongly concluded, contrary to the evidence, that the Appellants had given

their implied consent to all reproductions of the Works;

c) He wrongly concluded, contrary to the evidence, that the Appellants had given

their implied consent to all derivative works based on the Works;

d) He failed to consider whether the Defendants, by breaching the terms of the

Agreement, had infringed the Apellants’ copyright in the Works’; and

e) He failed to consider the Appellants’ moral rights in their works and whether

those rights had been infringed when those works were not associated with the

Appellants by name.

11. Such other grounds of appeal as counsel may advise and this Honourable Court may deem

just.

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THE BASIS OF THE APPELLATE COURT'S JURISDICTION IS:

1. Section 6(1)(b) of the Courts of Justice Act;

2. Sections 134(4)(a) and 134(4)(c) of the Courts of Justice Act;

3. The order of Justice MacLeod is a final order; and

4. Leave to appeal is not required.

September 27, 2021 GIBSONS LLP

Barristers & Solicitors
1520-360 Albert Street
Ottawa, Ontario K1R 7X7

D. Kenneth Gibson (LSO #14245K)

George Boyd Aitken (LS0
#49009W)
Jason Rabin (LSO #52656M)

Tel: (613) 238-8865

Fax: (613) 238-8880

dkg@gibsonslaw.com
gbaitken@aitkentaxlaw.ca
jrabin@gibsonlaw.com

Lawyers for the Plaintiffs (Appellants)

TO: NORTON ROSE FULBRIGHT CANADA LLP

Suite 1500, 45 O'Connor Street
Ottawa, Ontario K1P 1A4

Jamie Macdonald (LSO #53432C)

Tel: (613) 780-8604/8628

Fax: (613) 230-5459
jamie.macdonald@nortonrosefulbright.com

Lawyers for the Defendant (Respondent)

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TANYA WOODS AND 2285675 ONTARIO INC. -AND- UNIVERSITY OF OTTAWA

Plaintiffs (Appellants) Defendant (Respondent)

Court File No.___________

(CV-13-573876-0000)
____________________________________________________________________________________________________________

COURT OF APPEAL FOR ONTARIO

Proceeding commenced at Ottawa

NOTICE OF APPEAL

GIBSONS LLP
Barristers and Solicitors
1520 – 360 Albert Street
Ottawa, ON K1R 7X7

D. Ken Gibson (LSO #14245K)

George Boyd Aitken (LSO: 41422C)
Jason Rabin (LSO: 52656M)

dkg@gibsonslaw.com
dkg@gbaitken@aitkentaxlaw.ca
jrabin@gibsonlaw.com

Tel: (613) 238-8865

Fax: (613) 238-8880
Lawyers for the Plaintiffs (Appellants)