Case Law

JB & M Walker Ltd. v. TDL Group (Ontario Superior Court, February 2019)

The Ontario Superior Court of Justice (EM Morgan J.) was asked to approve a funding agreement to allow Tim Hortons franchisees to continue their litigation against their franchisor for alleged misappropriation of advertising funds. An alliance of franchisees had provided financial support to the Plaintiffs but they were no longer able to continue this financial support.

The Plaintiffs therefore entered into a funding arrangement whereby the litigation funder paid all fees and disbursements on a pay-as-you-go, non-recourse basis. Counsel would also receive a small top-up of 2% to 3%, to be determined at the end of the action. The funder was to receive between 22% and 26% of the litigation proceeds. This was the first decision in Canada where a Court was asked to approve a funding arrangement whereby the funder paid all of class counsel’s fees, in addition to paying disbursements and providing an adverse costs indemnity.

The Court recognized that third-party funding would "ensure that the Plaintiffs and the putative class of franchisees are able to achieve access to justice" and deter wrongdoing (para. 12). Relying on Houle v. St. Jude Medical Inc., 2017 ONSC 5129, aff’d 2018 ONSC 6352 (Div. Ct.), the Court held that the funding agreement "protect[ed] the financial and human capital of class counsel while seeing to it that the Plaintiffs and class have adequately resourced legal representation" (para. 13). The Court was reassured by the fact that the agreement could only be terminated with court approval, and that the Plaintiffs received independent legal advice regarding the agreement and budget from experienced class action lawyers (para. 4). Because the combined amounts to which the third-party funder and Plaintiffs’ counsel would be entitled came to a maximum of 29%, which is within the range of "presumptive validity" for contingency fees recognized in previous cases, the Court was comfortable approving the agreement at the outset, subject to being able to control the fairness of the ultimate recovery when a settlement is approved or a final award is rendered. The Court was convinced by class counsel’s submission that using a third-party funder would result in a greater recovery to the class than if class counsel had entered into a typical 33%-plus contingency fee arrangement (para. 26). Given the structure of the funding agreement, the Court also mentioned that it was not comparable with the Class Proceedings Fund arrangement and its 10% return (para. 24).

Ultimately, the Court approved a settlement agreement pursuant to which class members recovered overall value of $37,396,000 (through cash and non-monetary items). Turning to the approval of the funder’s and class counsel’s returns, the Court noted that the funder had incurred over $1 million in charges since signing the LFA, had undertaken “a substantial risk in assuming liability for any adverse costs awards”, and had been “instrumental in the class achieving the settlement” (para. 17). The Court noted that the return sought by the funder and class counsel was less than what they were entitled to seek: the funder sought approval of a payment in the amount of $3,622,641.51, or 24% of the $12,000,000 cash payment, and class counsel sought approval of a payment in the amount of $377,358.49, or 2.5% of the $12,000,000 cash payment, plus a marginal 2.9% and 0.3%, respectively, on the $25,396,000 non-monetary settlement. This worked out to a combined return of 33% of the $12,000,000 cash component alone.   

David v. Loblaw (Ontario Superior Court, October 2018)

In this proposed class action, the plaintiffs allege that the defendant manufacturers and retailers of packaged bread engaged in unlawful price-fixing over a 15 year period.   Class counsel are acting on a contingency fee basis, but the disbursements for litigating the complex claim are expected to be in the millions of dollars.  In addition, there is a significant adverse costs exposure if the action, or any motions within it, are unsuccessful.  Following a competitive process, the plaintiffs entered into a Litigation Funding Agreement (LFA) with Bentham.

The key features of the LFA are that Bentham will (a) pay disbursements incurred by class counsel up to a prescribed maximum, after which class counsel will fund the disbursements; (b) pay any court ordered costs on behalf of the Plaintiffs up to a prescribed maximum, after which class counsel will be responsible for court ordered costs; (c) provide security for costs of one or more Defendant if required by the court to do so, which security will take the form of an Undertaking.  In return, Bentham will be reimbursed for all payments advanced and will receive a return of 10% out of the litigation proceeds after deduction of disbursements, lawyers’ fees and taxes, and administrative expenses. Bentham’s 10% return is capped under the Agreement.

Following a motion on notice to the defendants, Justice Morgan approved the LFA.  In doing so, he noted that:

  1. Bentham is a substantial financial entity whose financial statement are a matter of record.  It is “amply capitalized, and also has insurance as a backstop to its obligations under the Agreement” (para. 15).  Moreover, as a reporting issuer, any changes to its financial position are a matter of public record (para. 8).
  2. Bentham’s return would be on par with the Class Proceedings Fund (“CPF”), but is also capped at a fixed amount, unlike the CPF (para. 13).
  3. The LFA contains features “which add layers of fairness to the class: the claimants have sole right to direct proceedings and instruct counsel, termination of the Agreement is only with leave of the court (and if before certification the consent of class counsel is also required), Bentham will pay the costs up to the termination date (including costs of a motion to approve termination), and any assignment must be on notice to all parties and requires approval of court” (para. 14).  In addition, the representative plaintiffs received independent legal advice from a class actions lawyer prior to entering into the Agreement.
  4. Bentham agrees to satisfy any security for costs in the form of an Undertaking made to the Defendants.  The question of whether to accept an Undertaking as security is a discretionary one, and in accepting it here, Justice Morgan noted:
    1. a.  Although the Undertaking is given by IMF Bentham Ltd (the parent company to the Canadian entity), a parent Undertaking was acceptable:  “Bentham Australia has attorned to this court’s jurisdiction and has waived any jurisdictional defences. In any case, Australia is a jurisdiction with a legal system as similar as any to that of Ontario, and there should be no problem seeking enforcement of an Ontario court order in the Australian courts” (para. 18).

      b.  Although the monetary cap on Bentham’s funding, including the total adverse costs commitment, was redacted, it was not necessary for the defendants to have access to that figure.  An unredacted copy was provided to the Court, and Justice Morgan was “satisfied that Bentham’s obligation to fund the litigation is sufficient to cover any likely costs award” (para. 19). 

      c.  While there was no motion for security for costs presently before the Court, there was “no reason to withhold approval of the Agreement on the basis that it proposes a form of security that is in any case within the scope of discretion of a judge hearing such a motion” (para. 22).

The Agreement was therefore approved.

Marcil v. Commission scolaire De La Jonquière et al (Quebec Superior Court, July 2018)

In July 2013, a proposed class action was filed against a number of Quebec school boards alleging that the certain fees charged violated the guarantee of free educational services provided in Quebec’s Education Act.  In a judgment dated December 6, 2016 (confirmed on appeal in April 2017), the Quebec Superior Court authorized the class action.

In June 2018, a settlement agreement was reached and submitted for approval to the Superior Court.

In a judgment dated July 30, 2018, Justice Carl Lachance of the Superior Court approved the settlement agreement and the proposed terms of the compensation sought by class counsel. Those terms included a request to be reimbursed for the costs of litigation funding.

Justice Lachance held that the funding had been necessary for the class action to proceed. Following a precedent set by Justice Claudine Roy (as she then was) in Marcotte v. Banque de Montréal, 2015 QCCS 1915, Justice Lachance agreed that the financing costs should be reimbursed out of the sums to be collectively recovered, in addition to class counsel fees. 

Marriott v. General Motors of Canada Company (Ontario Superior Court, April 2018)

The underlying litigation is a class action for alleged violations of Canadian automobile emission standards.

This specific decision was in regards to plaintiff’s motion to approve a litigation funding agreement. Under the agreement, the funder is to pay certain disbursements and any adverse costs orders in exchange for 7% of the litigation proceeds (capped at $15 million, or $10 million if the action is resolved prior to the plaintiff filing a pre-trial conference brief).

The Court applied the test for third party litigation funding approvals summarized in Kinross, and granted the plaintiff’s motion.

Houle v. St Jude (Ontario, August 2017 and October 2018)

This case is the next stage in the evolution of Canadian jurisprudence relating to the third-party litigation funding in class actions. Previous cases considered litigation funding for disbursements and adverse costs orders alone. In Houle, the Ontario Superior Court provided guidance on a Litigation Funding Agreement where Bentham agreed to pay a portion of lawyers’ fees as the case progresses, in addition to agreed disbursements and any court-ordered costs.
 
Justice Perell commented that “the novelty of the hybrid retainer that combines a partial contingency fee with a fee-for-services retainer strikes me as a positive factor . . .  This approach which partially protects the financial and human capital of class counsel may expand the roster of firms prepared to assume the risks of class action litigation” [para. 79].
 
He then set out a six-part test for assessing an LFA: (a) can a court scrutinize the LFA [para. 73]; (b) is third-party funding necessary in the case [75]; (c) will the funder make a meaningful contribution to access to justice or behaviour modification [78]; (d) will the funder be overcompensated for its risks in the case [80]; (e) is the lawyer-client relationship protected from interference [88]; and (f) is the LFA not illegal under some other grounds, independent of champerty and maintenance [100].
 
The Court concluded that the LFA met all criteria except for (d) and (e).
 
In regards to (d), overcompensation, Justice Perell concluded that the appropriate level of compensation for Bentham can be determined only at the end of the litigation [87]. In other words, Bentham cannot know if it is entitled to its full contractual rate of return for its investment in the litigation until after the case is over. The Court was willing to pre-approve only a 10% return, by analogy to the Class Proceedings Fund’s rate of return,  with any further return to the funder to be assessed at the conclusion of the case.

In regards to (e), interference, Justice Perell expressed concern that Bentham’s termination rights under the LFA might interfere with the plaintiffs’ litigation autonomy [89]. Specifically, the Court held that Bentham should have no right to terminate the LFA if the case is no longer meritorious, and should be able to terminate the LFA in other specific circumstances only upon court approval [98].
 
The Divisional Court granted leave to appeal, and in October 2018, upheld the motion Judge’s decision.

Schneider v. Royal Crown Gold Reserve Inc. (Saskatchewan, 2016)

The representative plaintiff in a class action sought approval of a third-party funding agreement on an ex parte basis. Chief Justice Popescul first noted that because in May 2015, Saskatchewan changed from a "no costs regime", to a "costs regime" for class actions, third-party funding agreements "are often a necessity" to enable class actions to advance (para. 5).
 
As there were no Saskatchewan precedents on point, Justice Popescul reviewed the law from other provinces. He found that it was appropriate to proceed on an ex parte basis, as "the existence of the LFA has no bearing, substantively or procedurally on the defendants or the third parties. From whose pocket an adverse cost award is paid is of no consequence to the defendants and the third parties" (para. 11).
 
Justice Popescul reviewed the criteria set out in Hayes v Saint John, and held that the agreement satisfied those conditions. He therefore approved the funding agreement.  In addition, Justice Popescul ordered that the defendants be notified that an agreement had been approved, but held that the agreement would be subject to a confidentiality order.

He explained:  

"The LFA, and the terms contained therein, if not subject to a Confidentiality Order would result in the disclosure of confidential and sensitive information that relate to the legal services and advice given by counsel and form a part of the plaintiff’s litigation strategy. The LFA contains insight into the strategic consideration inherent in the representative plaintiff’s strategy in these proceedings. It contains precise limits of disbursement funding and adverse cost award protection offered by the funder, the funder’s implied valuation of the claim for the purposes of setting the funding rate, and the termination provisions governing the availability of funding. Knowledge of this information on the part of the defendants or third parties would allow them to gain an unfair glimpse into the litigation psyche of the plaintiff, which is neither desirable nor fair." (para. 10).

Hayes v. The City of Saint John et al (New Brunswick, 2016)

The plaintiff sought approval of a litigation funding agreement for a class action. The motion was initially filed on an ex parte basis, but the Court ordered that it proceed with notice to the defendants. The plaintiff was not required, however, to give the defendants copies of the LFA, as the Court held it should be sealed. The defendants thus made submission about the principles to be applied when deciding whether to approve an LFA, but did not apply those principles to the LFA at issue.

Justice Grant relied upon the criteria outlined in the Ontario jurisprudence, particularlyBayens and Dugal, and found that those criteria were satisfied here. He therefore approved the LFA.

The defendants also requested that the funder post security for costs with the Court. Justice Grant held that in light of his conclusion that the LFA meets all of the requirements and is not an example of the torts of champerty or maintenance, there was no principled reason to require that the third party funder provide security for costs outside the usual process for such an order. He therefore denied the request. 

Berg v. Canadian Hockey League (Ontario, 2016)

A proposed representative plaintiff brought motion without notice for approval of a litigation funding agreement between the class, proposed class counsel and third-party litigation funder.  The moving parties also sought an order sealing the court file. 

Justice Perell first confirmed that third-party funding agreements are no longer prohibited.  However, if they are unfair to the client, interfere with a lawyer’s professional responsibilities to the client or the court, or potentially could interfere with the administration of justice, then such an agreement would be illegal (para. 5). 

Justice Perell noted that the funding agreement in this case was "extraordinarily complicated", and he was concerned that the representative plaintiff needed independent legal advice about agreement, and also about the interrelationship of the contingency fee agreement with counsel and the third party funding agreement with the funder. Neither the Court nor class counsel could be relied upon to provide that advice (para. 15-18).   

The defendants' view on the agreement would also not be sufficient, as "defendants cannot and should not be relied on to ferret out the problems with a third party funding agreement, because once their own interests are protected, such as ensuring that they have access to the funds for a costs awards favourable to them, they might be content with the knowledge that the plaintiff was not judgment proof for costs, and thus defendants might rather like the existence of a third party funding agreement" (para. 19). 

Justice Perell therefore determined that the circumstances required a sequential approach. The representative plaintiff must first retain, at the expense of class counsel, a lawyer to provide independent legal advice about the legality of the proposed third party funding agreement, as well as a recommendation as to whether or not the representative plaintiff should agree to the funding agreement. The written opinion must then be provided to the Court.  

The motion for approval of the agreement was adjourned until that opinion was obtained, and provided to the Court. Justice Perell confirmed that there was no basis to involve the defendants at the outset, and but they may be involved depending on how the request for court approval progressed. That is, if it was determined that the third party funding agreement should not be approved because it was illegal or unfair and not in the interests of the putative Class Members, then there would no need to have the agreements and the other sensitive material disclosed to the Defendants.  

To date, there has been no reported decision on the adjourned motion.  

Walter v. Canadian Hockey League (Alberta, 2016)

This is a class action against the Western Hockey League (WHL) and its umbrella organization, the Canadian Hockey League.  The plaintiffs claim that during the time they played in the WHL, they were employees of the clubs and were therefore entitled to receive minimum wage payments in accordance with minimum wage legislation in the respective Canadian and US jurisdictions. This is the parallel claim to the Berg v. Ontario Hockey League matter in Ontario.

The representative plaintiff brought an ex parte motion for approval of the contingency fee agreement with their counsel, and for approval of the “financing and indemnity agreement” between the representative plaintiff, class counsel and a funder. 

The Court approved the contingency fee agreement, subject to amendments directed by the court.  It also approved the agreement with the funder, and ordered that (1) documents exchanged between the plaintiff, class counsel and the funder are confidential; and (2) the plaintiff and class counsel can provide documents to the funder, including transcripts and productions from the action, on the condition that the funder and its staff are bound by the deemed or implied undertaking rule.

In 2017, this action was certified as a class action.   

Marcotte v. Banque de Montreal (Quebec, 2015)

This decision relates to the decade-long class action litigation against financial institutions, which culminated in a win for the plaintiffs at the Supreme Court of Canada (2014 SCC 55). The litigation was subsequently settled for $56 million. In the present decision, the Superior Court of Quebec was asked to approve the settlement as it concerned the payment of $13.5 million in lawyers’ fees and $7.3 million in litigation financing costs. The court approved both, holding (paras. 43-44; unofficial translation):

“In the face of legal costs, an industry has emerged, which is not yet widespread in Quebec, but which is gaining momentum in Canada and is more developed in Great Britain. A client who could not otherwise enforce his or her rights can obtain funding, in return for a commitment to provide a high financial return to the funder. In exchange, the latter agrees to risk its funds, and is paid only if the plaintiff wins his or her case. … [T]he financing of third party litigation is a path to justice.”

Stanway v. Wyeth Canada Inc. (British Columbia, 2014)

In a 2013 decision in the same matter (2013 BSCS 1585), the Court considered whether LFAs can be approved in the class action context, and concluded:

  • LFAs may be approved in B.C., but the Court must hear the defendants’ submissions on it, even in no-costs regime.
  • “I must consider whether the funding agreement appropriately manages the risks to the plaintiff’s control of the litigation, the independent professional judgment of counsel and disclosure of sensitive information” (para. 42).
  • The LFA is subject to privilege in respect of specific aspects: litigation strategy, litigation budget and other “highly sensitive” aspects (para. 43).

In this 2014 decision, the Court considered a specific agreement for approval. It cited extensively from Bayens and Kinross from Ontario, and found that under the Ontario jurisprudence, “the LFA must be fair and reasonable and provide the representative plaintiffs with access to judgment, without compromising the principles of independence of counsel, confidentiality agreements between the parties be observed and, not to the disadvantage of the representative plaintiffs” (para. 17).

Court found that the LFA, which guaranteed the funder a minimum of 150% return on its investment and has no cap on potential recovery, was reasonable and fair. The funder may receive a “windfall”, but there “is every probability of a protracted litigation and the result is speculative” (para. 18).

Court did not find the counsel’s independence was compromised by the funder’s right to terminate if the representative plaintiff changes counsel or altered the strategic course of litigation, or by the funder’s right to provide strategic advice (para. 19).

The Court rejected the argument that the representative plaintiff should be required to obtain independent legal advice; since Court approval is being obtained, such legal advice adds little benefit (para. 20).

Rooney v. ArcelorMittal S.A. (Ontario, 2013; 2018)

Litigation funding for this class action was offered in exchange for a rate of return that was more favourable to the plaintiffs than the rate applicable to the Class Proceedings Fund. The defendants did not oppose the arrangement. In 2013, the Court approved the funding agreement, based mainly on precedent examples in decisions rendered by Justices Strathy and Perell. The Court ordered the foreign funder to pay security for costs, by means of an irrevocable letter of credit or otherwise.

The defendants were not satisfied with the letter of credit, principally because it was subject to annual renewals and contained an ultimate expiry date. In 2018, they requested the action be stayed until other security was posted. The Court dismissed the defendants’ motion, holding that the letter of credit was sufficient, because the Court would receive advance notice of any non-renewal or expiry and it would immediately call the letter of credit at that time. 

Bayens v. Kinross Gold Corporation (Ontario, 2013)

British funder to give costs indemnity up to $1M before certification, and $5M after certification.

Recovery of 7.5% if recovery before certification, 10% after certification (after fees and disbursements).

Plaintiffs not prepared to proceed without a contingency fee agreement and protection from a costs award. Counsel would not indemnify for costs, and Class Proceedings Fund turned them down.

Defendants did not oppose as long as funder posted security for costs.

Need for indemnity arose because of Ontario’s decision not to adopt a no-costs regime: “against the recommendation of the Commission. . . the Legislature rejected a no-costs regime for Ontario.” (para. 23). Instead created the Class Proceedings Fund.

“Indeed, it became the conventional wisdom that Class Counsel, who have far more to gain from a class action than the individual class members or the representative plaintiff, would be negligent or unethical if they allowed their client, the representative plaintiff, to assume a potentially catastrophic financial risk.” (para. 30)

“The new alternative is funding from a third party funder, and the current state of affairs in that courts in Ontario have come to accept and have approved the use of third party funders. Third party funding of class proceedings is permitted in Ontario as an appropriate manner of allowing plaintiffs and class counsel to mitigate the substantial litigation risks in class proceedings.” (para. 34)

Court approved agreement and set out number of principles governing LFAs. Court did not specify if they were intended to apply outside class action proceeding.

In June 2015, Justice Perell approved a settlement agreement. 

Trustees of the Labourers’ Pension Fund v. Sino-Forest Corporation (Ontario, 2012)

Irish funder to provide costs indemnity and $50K disbursements in exchange for 5% before pretrial ($5M cap) and 7% after pretrial ($10M cap).

Plaintiffs gave notice to defendants and to 20 of the largest institutional investors/ members. No opposition.

Agreement included an obligation on Class Counsel to inform funder about any significant issue in the action including prospects, strategy, quantum, proof and material changes. CFI acknowledges that the Plaintiffs provide the instruction to the lawyers and that the lawyers’ professional duties are owed to the Plaintiffs and not CFI.

“It is a fair and reasonable agreement that facilitates access to justice while protecting the interests of the Defendants. The Defendants have the comfort that money for their legal costs has been paid into court” (para. 15).

“In the circumstances of this case, the third party funding agreement is preferable to the alternative of funding from the Class Proceedings Fund. The commission is less than the 10% uncapped levy that would be extracted by the Fund.”

Class action was certified.  Some defendants have settled, case against non-settling defendants continues. 

Fehr v. Sun Life Assurance Company (Ontario, 2012)

Plaintiffs’ firm willing to act on contingency if court approved adverse costs agreement with funder. Plaintiffs not willing to disclose details of funding agreement.

“[I]n determining whether to approve a third party agreement, it will be necessary to consider the particularities of the funding agreement . . . in my opinion, disclosure of the type and details of the third party funding to the defendant is in the interests of the administration of justice and disclosure to the defendant may help fill an adversarial void in the process of approving or refusing third party funding agreements” (para. 77)

“a third party funding agreement must be promptly disclosed to the court and the agreement cannot come into force without court approval. Third party funding of a class proceeding must be transparent and it must be reviewed in order to ensure that there are no abuses or interference with the administration of justice” (para. 89).

Third party funding agreement is not privileged, or if it is, that privilege is waived. Agreement would only be approved after agreement is disclosed, and by motion on notice to the defendant.

Case did not proceed as plaintiffs did not disclose agreement to defendants.

Dugal v. Manulife Financial Corp. (Ontario, 2011)

Irish funder would indemnify against costs and pay $50,000 towards disbursements, in exchange for 7% of recovery (after deduction of fees and expenses).

$5M cap before filing pre-trial brief and $10M afterwards.

Court held it had jurisdiction to assess at this stage: Under circumstances, "[t]o postpone the decision to post-certification, when the views of class members can be sought, could very well spell the end of this proceeding, because the plaintiffs cannot withstand an adverse costs award on certification" (para. 17).

"The grim reality is that no person in their right mind would accept the role of representative plaintiff if he or she were at risk of losing everything they own. No one, no matter how altruistic, would risk such a loss over a modest claim. Indeed, no rational person would risk an adverse costs award of several million dollars to recover several thousand dollars or even several tens of thousand dollars" (para. 28).

Goal of access to justice "would be illusory if access to justice were deterred by the prospect of a crushing costs award to be borne by the representative plaintiff or counsel . . . third-party indemnity agreements can avoid the unfortunate result that individuals with potentially meritorious claims cannot bring them because they are unable to withstand the risk of loss" (para. 33).

7% is reasonable and consistent with 10% that Fund would collect; caps are reasonable and fair reflection of funder's risk.

Before approving, CFI had to post security for costs, and parties to agree on guidelines for providing information to funder.

MacQueen v. Sydney Steel Corp. (Nova Scotia, 2010)

Court approved a funding agreement between the representative plaintiffs and funder. No reasons were given.

Metzler v. Gildan Activewear (Ontario, 2009)

Irish funder to give adverse costs indemnity in exchange for 7% after legal fees and disbursements.

No cap on recovery to funder.

Defendants were “affected” by the agreement, and entitled to notice of motion and to make submissions on it (para. 3).

“The ability to terminate the Agreement without cause should [] be deleted with the result that [the funder] may only terminate its obligations if the plaintiff fails to fulfil its obligations under the Agreement or appoints different lawyers to replace the present lawyers as the Agreement now provides” (para. 60).

“This plaintiff is not impecunious and may well have the means to pursue litigation. However, I do not find it improper that it seeks to reduce the risks which a class proceeding exposes them to” (para. 67).

Could not determine if the agreement was champertous at this stage, because do not yet know if the fees received will be fair and reasonable. . . funder might be “overcompensated” (para 70-72).

Because Court could not assess whether compensation was fair and reasonable, without knowing what that compensation would be, would not approve funding agreement in advance. Agreement therefore not approved.

Action settled in 2011.