CASE OF THE COPYCAT CASTLE
Forest Hill couple sued neighbours for $2.5 million over house they said was renovated to look like theirs
A Forest Hill couple took their neighbours to court for copying the look of their multimillion-dollar home.
Jason and Jodi Chapnik, who own the home on Strathearn Rd., near Bathurst St. and Eglinton Ave., alleged that a house on nearby Vesta Dr. was newly renovated to look “strikingly similar” to theirs — including using the same shade of blue and matching grey stonework.
The Chapniks filed a lawsuit against Barbara Ann Kirshenblatt, her builder husband and architect brother-in-law for copyright infringement in Federal Court, as well as the real estate agent who profited from the house’s recent sale and the anonymous contractors who worked on the house. They were seeking $1.5 million in damages, $20,000 in statutory copyright damages, $1 million in punitive damages and a mandatory injunction on the defendant to change the design of the home.
According to a 2014 statement of claim, the Chapniks say their architectdesigned home is “one of the most wellknown and admired houses in the Cedarvale and Forest Hill neighbourhoods, in a large part due to its uniqueness.” They claim Kirshenblatt, who is “in the business of . . . flipping houses,” copied their home to increase her property value “while decreasing the value of the plaintiff’s unique house.”
Kirshenblatt denied copying the look of her neighbours’ home and said the house is actually inspired by Tudor stone cottages, of which multiple photographs were supplied in the statement of defence filed in court.
Further, she said, the features, including the “application of a single colour, such as blue, to windows, doors and stonework, and the application of ‘Tudor’ style stonework to a facade has been common to the trade for centuries, and is not protectable by copyright.”
The allegations were not proven in court. The parties agreed to settle out of court and the terms were not disclosed.
“There is no admission of guilt or liability on the part of my clients, and they truly believe that they did nothing wrong,” said the Kirshenblatts’ lawyer, Jeremy Lum-Danson, in an email.
“To them, the houses do not look the same.”
The case had gone on for more than three years. The Chapniks purchased the Strathearn Rd. house, originally built in 1935, for $3.8 million in 2006, according to land registry information, and began renovations one year later.
The couple worked with the late Gordon Ridgely and his architecture firm to draw up a new design, wanting to maintain the home’s stonework but “modernize the look and feel of the building,” according to a statement of claim filed by the Chapniks.
The size of their house doubled to about 8,000 sq. ft. during the renovation, the couple’s lawyer, Kevin Sartorio, confirmed.
A brown front door with an arched lintel, distinct grey masonry and mortar application and raised stonework around the chimney were part of the renovations. Wood-framed windows were redesigned and painted blue, and T-shaped stone corbels with unique detailing were installed. Special wood panels were mounted on select gables. “A tremendous about of skill, effort, time, judgment, care (and money) was spent across nearly seven years in terms of designing, architecting and building a unique and beautiful house,” Jason and Jodi Chapnick said in an email through their lawyer.
“The events that occurred in relation to the house on Vesta Drive were incredibly distressing.”
A value assessment by the Municipal Property Assessment Corp. shows that as of Jan. 1, 2016, the Strathearn property, which sits on one acre of land, was worth about $5.8 million.
“It would have been much less expensive for the Chapniks to simply knock down the original house and build a new house,” the claim document read.
The Vesta Dr. house went on the market in May 2013. It was purchased by Barbara Ann Kirshenblatt, a retired kindergarten teacher, for $1.6 million, and renovations began right after the deal closed in October.
Her husband Eric’s construction company, RKS Building Group, and his brother Steven’s architectural firm, Kirkor Architects and Planners, were brought on to design and build at the Vesta Dr. property.
Jason Chapnik, an entrepreneur and CEO of a Toronto-based investment firm, claims that contractors from the Vesta Dr. project visited his property. In May 2014, the contractors approached his home and “indicated that they were building a house nearby and were copying aspects of his design,” according to his statement of claim.
“These tradespeople noticed Mr. Chapnik and walked onto the Strathearn property to speak to him and study the Strathearn house closer,” the claim said.
Chapnik first noticed the apparent similarities between the properties “when only the windows were installed onto the wood frame.”
Neighbours and friends emailed and called the couple to comment on their home’s apparent twin, their statement of claim said. The houses are 850 metres apart.
Documents say the Chapniks delivered a notice to Kirshenblatt to “cease infringing.” And that “Ms. Kirshenblatt indicated that she would not cease.”
The Chapniks then mounted the legal dispute against Kirshenblatt under the company, Strathearn Consulting Inc., in August 2014. They later added the other defendants.
“The Defendants’ conduct constitutes willful, high-handed, and deliberate infringement of the Plaintiff’s copyright in the Strathearn Design and should attract the Court’s condemnation through a substantial award of aggravated, exemplary or punitive damages,” the Chapniks’ claim said.
An archived real estate listing from 2014 shows the Kirshenblatts were asking almost $4.3 million for the newly renovated Vesta Dr. house.
It was sold for $3.6 million in February 2015, almost $2 million more than what the Kirshenblatts paid to purchase the house in 2013, according to land registry information.
The Krishenblatts, who have lived in the Forest Hill neighbourhood since 2007, never resided at the Vesta Dr. house.
The Kirshenblatts, RKS Building Group, Kirkor Architects and Planners, subcontractor King Masonry Yard Ltd., Forest Hill Real Estate, real estate agent Julie Gofman, and “Jane and John Doe” — representing anonymous individuals and companies like builders and tradespeople — are all named as defendants in the claim.
Copyright infringement does not require that the infringing party knows they are doing it, and anyone involved in reproducing and profiting from the copyrighted work can be sued, said Carys Craig, an associate professor at Osgoode Hall Law School who specializes in intellectual property law and policy.
“There’s nothing about copyright that requires you to be an expert, or to be applying and registering your rights in order to either acquire rights or to infringe them,” she said.
In a statement of defence, Kirshenblatt and the other parties noted the houses have different shapes, layouts and configurations. They drew up a table to compare the differences. For example:
The Strathearn Rd. house has slim overhang on the eaves while the Vesta Dr. house has traditional overhang.
The Strathearn Rd. house has a cedar roof while the Vesta Dr. house has asphalt shingles.
The Strathearn Rd. house has “random rubble stone,” while the Vesta Dr. has a “stone veneer.”
The eavestroughs on the Strathearn Rd. house are copper with a rounded bottom whereas on Vesta Dr. the eavestroughs are metal or aluminum with a square bottom.
“The look and feel of the two properties are so divergent in overall appearance, scale and context that to the normal passerby, any meaningful visual relationship between the two residences would be difficult to associate,” according to the Kirshenblatts’ statement of defence.
The Kirshenblatts submitted a photocopy of a 1940 Canadian Homes and Gardens magazine
“We often don’t think about buildings as works of art.” CARYS CRAIG LAW SCHOOL PROFESSOR WHO SPECIALIZES IN INTELLECTUAL PROPERTY LAW
showing Tudor-style cottage designs in their court filings, a style they claim to have been inspired by in the redesign.
They were also requested by the Chapniks to list all the properties they looked at “to develop the Vesta house” and provide addresses and to provide the name and addresses of contractors. They supplied the addresses of three other houses in the Forest Hill area, along with some online listings and the castle from the James Bond movie Skyfall.
“The defendants do not know the addresses for the houses (found online) or the Castle from the James Bond movie,” according to an undertaking requesting more information from the plaintiffs.
The document shows the Kirshenblatts provided several names of contractors, except for a man inexplicably called “Scary Steve” who “did the mason work.”
“These defendants do not have his contact information.”
Aconsent judgment was submitted on Sept. 21 to end the lawsuit out of court.
“Given the costs associated with the matter through trial, it was in the interests of all parties to reach an amicable settlement,” said the Kirshenblatts’ lawyer, Jeremy LumDanson.
“The case has had a profound impact on my clients. For them it has caused an unnecessary burden and disruption on their lives.”
Through their lawyer, the Chapniks said “a significant amount of time and money had to be expended in order to protect our copyright.”
They said the settlement “will allow us peace of mind to know that this should not happen again in the future.”
A copyright case between homeowners is rare, Craig, the law professor at Osgoode, said, adding that most disputes happen between architectural firms or construction industry people.
“We often don’t think about architecture when we think about copyright, and we often don’t think about buildings as works of art,” Craig said. “So it might seem like a particularly strange claim to the average person who assumes that if you own a home you can design it as you want.”