Heather Robertson (March 19, 1942 – March 19, 2014)

We note the death of Canadian author, Heather Robertson, last Wednesday. She published her first book, Reservations are for Indians, in 1970, and her last book, Walking into Wilderness, four years ago. She was a founding member of the Writers’ Union of Canada and the Professional Writers Association of Canada.

For the Slaw community she is best known for being the representative plaintiff in the action by freelancers to be paid royalties for electronic and digital access to their work. Robertson v. Thomson Corporation is the seminal case on copyright in a digital environment as it affects freelancers – as opposed to staff journalists.

Gary R commented on the settlement here, as it affected legal publishers, and I summarized the SCC decision here. She was described by William Patry as Canada’s Tasini.

The case started in 1996. A robust certification decision by Justice Robert Sharpe (Robertson v. Thomson Corp., 1999 CanLII 14768 (ON SC)) followed in 1999. In 2001, Justice Peter Cumming signalled the strengths of the case, by pointing out the weaknesses of the Globe and Mail’s defences of implied terms, implied licence, consent, and acquiescence and waiver.

A split decision in the Ontario Court of Appeal (Robertson v. Thomson Corp., 2004 CanLII 32254 (ON CA)), was matched by another split decision – pushed by Rothstein J’s first major decision after joining – in the Supreme Court of Canada (Robertson v. Thomson Corp., 2006 SCC 43 (CanLII), [2006] 2 SCR 363). But Heather had – narrowly – won.

It took another three years to hammer out a settlement. Cullity J blessed the settlement in 2009: Robertson v. Thomson Canada Limited, 2009 CanLII 32703 (ON SC).

My personal connection was slight. We were panellists on a CBC talk show in the early Noughties, discussing copyright in a digital age, and ended up having grilled fish at lunch together at Kit Kat. She impressed me as having a working knowledge of copyright that was better than 99% of the lawyers in town. Some class representatives are simply passive names on a statement of claim. Heather wasn’t like that at all. She was fully involved in her case, participating fully with her long-time counsel, Kirk Baert and Mike McGowan Indeed unusually she was awarded nominal compensation for her role – $5000. As Cullity J commented: “Ms Robertson has been in communication with class members about the litigation since its inception, and has obtained funds from them to defray disbursements. She has clearly been a driving force behind the litigation”. Nevertheless, in the parallel case Robertson v. ProQuest Information and Learning LLC, 2011 ONSC 2629 , Horkins J declined to do so, despite the fact that Heather and the class had been required to litigate the implications of the Canwest insolvency.

Global TV’s obituary is here and a local York Region paper here.

Canadian copyright law wouldn’t be the same without her contribution.