Robertson #2: Class Action Settlement Approval Heard

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

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 to seek approval of settlements in this second action. 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.