Canada (Attorney General) v. Rundle (Nec Plus Ultra)

This is an application in the Ontario Superior Court of Justice for an injunction, in which the Attorney General is seeking to prevent Rundle from continuing to use copies of the Public Service Commission’s (PSC) Second Language (French) Evaluation Test (SLE) in her courses to prepare students for the SLE Test. The SLE Tests were developed using taxpayer money to assess applicants for bilingual positions with the Federal Government and are stamped “Subject to Copyright Protection”.

The Attorney General established that there is a serious issue to be tried. With respect to irreparable harm, the Court found that the individuals taking Rundle’s course that have access to materials that are substantially the same as the official SLE Test have an unfair advantage compared to other test takers. The Court found that access to test questions causes the PSC irreparable harm in that the PSC cannot ensure compliance with the Official Languages Act. Rundle argued that her business would suffer irreparable harm if she was not allowed to continue to use a copy of the test to prepare her students. The Court found that this was not the case because she never had permission to use a copy of the SLE Tests in the first place. Finally, the Court found that the balance of convenience favours allowing Rundle to continue to operate her teaching business but without use of the official SLE Test questions.

Accordingly, Rundle was enjoined from copying, reproducing, distributing, making available to the public or any clients questions that are substantially similar to the SLE Tests.