Kirk M. Baert and Jonathan Bida of Koskie Minsky LLP are class counsel in this matter.

On May 2, 2011, Justice Carolyn Horkins of the Ontario Superior Court of Justice approved the settlement 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 settlement of an earlier action 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 www.kmlaw.ca/freelanceclassaction.