A Second Trilogy of Canadian Litigation Funding Case Law

Following a trilogy of cases regarding Bentham’s litigation funding last year, Bentham’s funding agreements have recently been the subject of three more decisions. While the focus of Bentham’s funding in Canada remains corporate commercial claims, these cases arose in the class action context: two litigation funding agreement approval motions (in Ontario) and one settlement approval motion (in Quebec).

Bentham is pleased to be contributing to the evolving jurisprudence on litigation funding. In each of the cases, the courts acknowledged that litigation funding can increase access to justice.

The key three points from these decisions are:

  1. As a well-capitalized entity and a reporting issuer, Bentham’s Undertaking to the Defendants is acceptable as a means of satisfying any order requiring the plaintiffs to post security for costs - David v. Loblaw, 2018 ONSC 6469;

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  2. For a "hybrid" arrangement, where the funder pays some of the legal fees as the case progresses in addition to adverse costs and disbursements, the court will approve a funder’s fee of up to 10% of the class recovery at the outset of the case. The court may then consider a further return to the funder at the conclusion of the case, when the outcome is known - Houle v. St Jude Medical Inc., 2018 ONSC 6352 (Div. Ct.); and

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  3. In Quebec, in addition to class counsel’s contingency fees, litigation funding costs can be payable by the class out of the sums collectively recovered – Marcil v. Commission scolaire De La Jonquière, 2018 QCCS 3836.

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The two Ontario decisions are hot off the press and the appeal periods have not yet passed.

Full details of the cases can be found under the Legal Landscape section of Bentham’s website. If you would like more information or wish to enquire about litigation funding, please contact us.