On May 2, 2011, Justice Carolyn Horkins of the Ontario Superior Court of Justice approved the of the class action Heather Robertson v. ProQuest, CEDROM, Toronto Star Newspapers, Rogers and Canwest, worth approximately $7.9 million. Class counsel provides this report.

Justice Horkins concluded that “the settlement is fair, reasonable and in the best interest of the class.” In coming to this conclusion, Her Honour found the likelihood of recovery or success in the action was a critical factor.

Her Honour agreed with the plaintiff Heather Robertson that success at trial was “by no means guaranteed”. The defendants had mounted vigorous defences and the litigation was fraught with risks, including the risk that a resolution would take many years, the plaintiff would fail to establish copyright infringement and the court would award damages on a much smaller scale than anticipated.

In addition, one of the main defendants, Canwest Publishing Inc., became insolvent during the course of the litigation and full recovery from Canwest became unrealistic. Justice Horkins found this “created a unique challenge for the plaintiff and her counsel in their efforts to settle this action.”

Justice Horkins compared the settlement with Ms. Robertson’s against The Thomson Corporation and its affiliates and found that the settlements compared favourably. There were additional challenges facing Mr. Robertson and her counsel in this action as compared with the Thomson action. There were arguably stronger defences than in the earlier action, the use of written freelance agreements had become more common amongst commercial publishers and the defendants had a better understanding of the number of class members that may make claims.

As a result of settlement approval, the process for distributing the settlement proceeds will begin. Justice Horkins approved a claims process whereby class members can make claims for compensation. There will be an official notice released in the next few weeks in newspapers and magazines, including the Globe and Mail and Macleans, that will set out how class members can make claims. The notice will also be available on the website of Ms. Robertson’s lawyers, Koskie Minsky LLP, at .

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Heather Robertson has prosecuted two class actions on behalf of freelance authors in Canada relating to the reproduction of their works in electronic media, such as online databases. In the second class action, a settlement went before the court for approval on April 11, 2011.

Ms. Robertson alleged in both actions that the defendants made freelance literary works available in electronic databases without the permission of the authors. The first class action was commenced in 1996 against the Thomson Corporation and its related companies. As many authors know, the Thomson action, after 13 years of litigation, resulted in an $11 million settlement; the net proceeds of the settlement were sent to freelance authors in March of this year.

The second class action was commenced in 2003 and relates to freelance literary works published by Toronto Star Newspapers Ltd., Rogers Publishing Limited, Canwest Publishing Inc., their predecessors and their affiliates. Yesterday, Ms. Robertson and her lawyers appeared in court . Her lawyers argued, among other things, that the settlements provide compensation to freelance authors that is substantial and certain. Ms. Robertson, and the freelance authors, avoid the risks and expense of continuing litigation. Success in the action was by no means guaranteed as the defendants had a number of defences that would prevent any recovery in the class action. Further, even if the action was successful, it could have been several more years before the completion of a trial and any appeals.

The settlements in the second action, if approved, will provide payment in the range of approximately $7.9 million, which is in addition to the settlement funds already paid in the Thomson action. In other words, through her 15 years of effort and advocacy for freelance authors, Ms. Robertson will have extracted settlements in favour of freelance authors totalling roughly $18.9 million.

The court in the second action has not yet released its decision on whether to approve the settlement. However, Ms. Robertson and her lawyers are optimistic and believe there is a good chance the court will approve the settlements.

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