Simon Chester first mentioned the class-action proceeding launched by Lorne Waldman against Thomson Reuters for alleged breaches of copyright for providing original documents created by lawyers without their permission or compensation through their “Litigator” service. The resulting discussion highlighted much of the controversy and tensions around the issue.
Last Tuesday, Justice Perell certified the class action. The plaintiff introduced evidence that at least some of the factums used had been registered with Canadian Intellectual Property Office for copyright, whereas the defendant introduced evidence by Ronald G. Slaght on how these documents are created, using juniors and other precedents, and claimed they should not attach copyright.
The court set out the respective positions in the pleadings,
 In his Statement of Claim, Mr. Waldman alleges that Carswell has committed primary and secondary copyright infringement as defined by the Copyright Act. He also alleges that Carswell has infringed his “moral rights”, as well as those of the class as a whole, by asserting that they are the owners of copyright in the works. He pleads that Thomson encourages its subscribers to infringe copyright. He claims $50 million in compensation for the proposed class members and punitive damages of $1 million.
 Thomson delivered a Statement of Defence on December 20, 2011. It asserts, among other things, that: (a) the subscribers of Litigator are subject to terms and conditions that accord with the Copyright Act; (b) it did not engage in copyright infringement; (c) its conduct constituted “fair-dealing,” pursuant to s. 29 and s. 29.1 of the Act; (d) it has the consent and/or an implied licence to copy and sell copies of court documents; and (e) has a right supported by s.2(b) (freedom of expression) of the Charter of Rights and Freedoms, to copy and sell the works. Accordingly, it denies any wrongdoing.
Although Justice Perell agreed with the defendant that a court document would have to be proven to establish copyright infringement, he rejected the argument that this made the circumstances inappropriate for certification. He also highlighted some logical flaws in the defendant’s position over copyright of Litigator documents,
 Thomson submits that some court documents are the product of a purely mechanical exercise, and it points to notices of motion and court orders as examples. Assuming Thomson is correct (and I do not have to decide the point), it is also obvious that some court documents involve the exercise of skill and judgment. Factums are an obvious example.
 I would have thought that the overwhelming majority of documents on Litigator are the product of judgment and skill, especially since Thomson advertised this feature in promoting litigator, but, nevertheless, Thomson is entitled to assert that a particular document is not subject to copyright protection, and it cannot be simply assumed that originality exists in all of the court documents available on Litigator…
Justice Perell indicated that it was both unnecessary and inappropriate to delve deeply into the copyright issue and problems with privilege, and instead focused on whether a reasonably strong argument available. The complexity of the issues did not prevent them from being tried as a class action here,
 …Putting aside the manageability factor, there is a fatal flaw in Thomson’s arguments about access to justice, judicial economy, and behaviour modification. Thomson’s argument depends upon a premise that cannot be taken as true at this juncture of the proposed class action. A necessary premise of Thomson’s argument is that the court will, on the merits, decide that Thomson committed no legal wrong and that its Litigator service is not an infringement of copyright or a violation of individual class members’ moral rights. If that premise were true, then it would follow that Mr. Waldman’s action would not advance access to justice for class members, would not provide judicial economy, and would not achieve the behaviour modification of a wrongdoer. However, a certification motion is not a merits test, and it remains to be determined whether Thomson is a wrongdoer.
 Assuming there was copyright infringement, a class proceeding is the only reasonable means to provide access to justice to class members. That some individual class members may have the financial means and that class members do not confront any social barriers and would not be intimidated in taking on Thomson, does not mean that a class action is unnecessary to provide access to justice. Class actions are suitable for cases where the individual class member’s monetary loss, if any, is small, but the defendant has wronged many who as individuals cannot sensibly take on the financial risk of suing the defendant, who simply gets away with its misdeeds.
 In the case at bar, for an individual class member, an individual action would not be financially viable. Thomson’s offer to remove the court documents from Litigator, at best, stops future injury, but this approach does not compensate or atone for the copyright infringement and the past violation of moral rights. In the case at bar, damages are not a constituent element of the class member’s individual claim, but, in any event, a class member is entitled to seek justice for the infringement of his or her rights even if that justice is a non-compensatory remedy enjoining the defendant from its misconduct.
 In the case at bar, an individual issues trial, would become viable only if the common issues were determined in favour of the class member, in which case, the court could employ its powerful procedural mechanisms and powerful distribution mechanisms to provide access to justice.
 In the case at bar, a class action would provide judicial economy. If the common issues were decided against Thomson, then the court would not have to decide those substantial issues again in the individual issues trial. If the common issues were decided against Thomson, then behaviour modification would be achieved. Thomson’s alternative of removing court documents from Litigator is an expediency to avoid acknowledging that its behaviour may be wrongful.