Stockwoods lawyers Brendan van Niejenhuis and Carlo Di Carlo acted as amicus curiae before the Ontario Court of Appeal in an important appeal (Bancroft-Snell v. VISA Canada et al., 2016 ONCA 896) that confirmed the scope of discretion judges have to approve or disallow fee sharing agreements and counsel’s fees in the class proceedings context. The case dealt with a multi-jurisdictional class proceeding, where an alleged “copy-cat” claim was commenced in one of the provinces duplicating the allegations already being advanced by a consortium of class counsel. After class counsel reached a settlement with one of the defendants, they entered into a fee sharing agreement with the counsel that commenced the “copy-cat” litigation, in exchange for the latter counsel agreeing to abandon their rival class action.
At the settlement approval motion, Perell J. declined to enforce the fee sharing agreement. He also reduced class counsel’s fee by 10%. Class counsel and the other party to the fee sharing agreement appealed this decision. In a decision released today, the Court of Appeal dismissed this appeal, and largely agreed with the submissions by amicus concerning the court’s authority under the Class Proceedings Act to review such agreements and the discretion to reduce class counsel’s fees in this context, and permitting the motion judge’s discretion to stand on that basis.
As the Court’s judgment notes, the issue of fee sharing agreements entered into in the context of multi-jurisdictional proceedings is one that has concerned the class actions bar. This decision provides important appellate guidance on the controversial issues that continue to arise in the national class action context.
A copy of the Court of Appeal’s reasons can be found here.
