Ontario Civil

Civil Procedure

Several issues readily lent themselves to resolution on class-wide basis

Plaintiff applied for certification of proposed class action pursuant to Class Proceedings Act, 1992 (Ont.). Defendant, through legal publishing branch, copied court documents that had been authored by lawyers and reproduced them on electronic data base and search retrieval service. Plaintiff was lawyer and documents he wrote were included in retrieval service without express permission. Plaintiff alleged that defendant infringed copyright of class members by making copies of court documents authored by lawyers and law firms available without permission and for fee. Plaintiff alleged that defendant committed primary and secondary copyright infringement under Copyright Act (Can.). Plaintiff alleged that defendant infringed his moral rights and those of class as whole. Plaintiff alleged that defendant encouraged users to infringe copyright. Plaintiff sought damages of $50 million for compensation and punitive damages of $1 million. Application granted. Court’s gatekeeper role was limited to ensuring that technical and procedural elements of test were satisfied. Court did not assess merits of claim. Plaintiff pleaded cause of action for copyright infringement and for infringement of author’s moral rights. Clients, self-represented litigants, law departments and public sector lawyers should not be included as class members. They were not similarly situated to private sector lawyers and were not likely to have commercial interest in protecting court documents from copyright infringement. With that refinement, there was identifiable class restricted to lawyers and paralegals in private practice. Some proposed common issues were individual and were not certifiable. However, action satisfied common issue criterion. There was set of questions that were certifiable and would substantially advance proceeding. Several issues readily lent themselves to resolution on class-wide basis. Proposed action satisfied preferable procedure criteria. Assuming there was copyright infringement, class proceeding was only reasonable means to provide access to justice to class members. Individual action would not be financially viable. Class action would provide judicial economy. Certification as class action would not result in unmanageable proceeding. Solicitor-client privilege was matter to be addressed but issue did not make class action unmanageable. Plaintiff was suitable representative plaintiff. Criteria for certification were satisfied and action was certified as class action.

Waldman v. Thomson Reuters Corp.

(Feb. 21, 2012, Ont. S.C.J., Perell J., File No. 10-CV-403667CP) 214 A.C.W.S. (3d) 28 (43 pp.).

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