Canadian lawyer copyright action against Thomson Reuters certified as class action

Thomson bReuters Messenger

Following recent news of an attorney federal class action filed in New York against LexisNexis and West for copyright violations, Jason Wilson at rethinck reports that the Canadian copyright action against Thomson Reuters has been certified as a class action.

The action in Waldman v. Thomson Reuters Corporation 2012 ONSC 1138 (Court File No. 10-CV-403667CP) involves a primary and secondary copyright infringement claim and infringement of moral rights claim brought by Lorne Waldman, a leading immigration and refugee lawyer, against Thomson through its legal publishing division, Carswell.

Waldman previously drafted and filed an appeal factum in the Court of Appeal for Ontario, on behalf of his client as intervenor, Maher Arar, in Bouzari v. Republic of Iran, an appeal which involved the issue of state immunity for torture.

Waldman subsequently registered a claim for copyright in his factum with the Canadian Intellectual Property Office. The Waldman class action alleges that  Thomson infringed the copyright of the class members by allowing subscribers to the Litigator service to access copies of court documents authored by lawyers and law firms, without permission and for a fee. Waldman claims on behalf of the class, $50 million in general damages and disgorgement of profits, or, alternatively, statutory damages under section 38.1 (a minimum of $500 and a maximum of $20,000) , $1 million in punitive damages, costs and pre-judgment interest.

Justice Perell rejected Thomson’s arguments that the class action was antithetical to the underlying rationales for class proceedings; namely, the open court system, access to justice, behaviour modification and judicial economy.  Perell J. also rejected Thomson’s arguments based on lack of commonality, identifiable class or preferable procedure criteria, finding that any purported difficulty in adjudicating individual claims to copyright, lack of originality or creativity, client contribution or waiver of privilege, were triable issues or to be addressed during the litigation, as were any available statutory and common law defences, such as fair dealing.  As Perell J. notes,

[7]               However, notwithstanding Thomson’s challenges, in my opinion, Mr. Waldman’s action does satisfy the criteria for certification, and with some modifications to the class definition and to the common questions, his action should be certified.

[8]               As my Reasons will reveal, Thomson’s arguments about commonality and about the preferable procedure criteria of certification should be rejected. In the main, Thomson’s arguments fail to recognize that certification is a technical and procedural legal phenomenon and the court’s gatekeeper’s role is limited to ensuring that the technical and procedural elements of the test are satisfied, which, subject to some adjustments, is the situation for the case at bar. Some of Thomson’s arguments against certification, while relevant to the determination of the merits of the action and to Thomson’s several defences, are not pertinent to whether, as a procedural matter, the action should be certified as a class action.

Full Disclosure: I have co-authored a few pleadings and facta that are on the Litigator database which means I would qualify as a member of the Class, unless I opt out].

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