A group of publishers sued the Law Society of Upper Canada for copyright infringement for providing photocopy services to researchers.

Since 1954 the Law Society of Upper Canada, a statutory, non-profit organization, offered request-based photocopying services to students, members, the judiciary, and authorized researchers at their Great Library at Osgoode Hall.

It also allowed visitors to the Great Library to use photocopiers to make individual copies of works held by the library.,[3] Three of the largest publishers of legal sources, CCH Canadian Limited, Carswell Thomson Professional Publishing and Canada Law Book Inc., sued the Law Society for copyright infringement of 11 specific works based on these activities.

[4] In response, the Law Society argued that the services it offered were necessary to provide equal access to the library's collection of legal materials.

The Law Society sought a declaration that its activities did not infringe on the publishers' copyrights, by either the provision of a single copy of a work or by allowing patrons to avail themselves of the self-service photocopiers.

[9] In comparison with the similar US Supreme Court case of Feist Publications Inc. v. Rural Telephone Service, McLachlin rejected Justice O'Connor's "minimal degree of creativity" test but agreed with her assessment of the "sweat of the brow" approach and found it too low a requirement.

[15] However the presumption can be rebutted by evidence that shows "a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement".

[23] In referencing Théberge v. Galerie d'Art du Petit Champlain inc.,[24] McLachlin emphasized the importance of balancing "the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.

"[25] She also clarified that "fair dealing" does not provide merely a defense which removes liability, but instead defines the outer boundaries of copyright and grants a right to the user.

[30] Since the Great Library was found not to have infringed on copyrighted material, no determination was made as to whether the Court of Appeals was correct in denying injunctive relief.