COURT OF APPEAL FOR ONTARIO

CITATION: Lavier v. MyTravel Canada Holidays Inc., 2013 ONCA 92

DATE: 20130214

DOCKET: C55662

Laskin, MacPherson and Gillese JJ.A.

BETWEEN

Suzanne Lavier

Plaintiff (Respondent)

and

MyTravel Canada Holidays Inc.

Defendant (Appellant)

Sally Gomery, for the appellant

Joel P. Rochon and Sakie Tambakos, for the respondent

Heard: November 30, 2012

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated March 13, 2012, with reasons reported at 2012 ONSC 1673.

MacPherson J.A.:

A. Overview and Facts

[1] This appeal arises out of a class proceeding alleging that the appellant, MyTravel Canada Holidays Inc. (“MyTravel”), knowingly sent travellers to a group of resorts in the Dominican Republic while there was an outbreak of norovirus at those resorts. The appellant’s negligence was alleged to have extended over many months.

[2] A proposed class action was commenced in 2005, but not initially certified: Lavier v. MyTravel Canada Holidays Inc., [2008] O.J. No. 2753 (S.C.). The certification decision was reversed on appeal to the Divisional Court: Lavier v. MyTravel Canada Holidays Inc. (2009), 2009 CanLII 14389 (ON SCDC), 248 O.A.C. 378 (Div. Ct.) Following this decision, the parties engaged in adversarial settlement negotiations, and a Settlement Agreement was signed on October 22, 2010. Accordingly, a consent certification was granted in order to facilitate the proposed settlement: Lavier v. MyTravel Canada Holidays Inc., 2010 ONSC 6823.

[3] The Settlement Agreement created a settlement fund of $2.25 million for a Class approximating 4000 members. The class was defined by reference to vacation packages booked through MyTravel to stay at the resorts where outbreaks were alleged, between December 20, 2004 and March 31, 2005. The Settlement Agreement provided for three levels of general damage payments for class members who had become ill, an arbitration mechanism for those with greater claims, and compensation for caregivers of those who suffered norovirus symptoms. The fund was capped, and MyTravel would not be liable to pay anything more than the $2.25 million settled in the fund.

[4] Pursuant to the Settlement Agreement, MyTravel agreed, among other things, to pay an Initial Counsel Fee of $600,000 inclusive of taxes and disbursements, subject to court approval, in addition to the funds made available to settle class claims. If, at the end of the claims process, any surplus funds remained, Class Counsel would be able to apply to court for additional fees. MyTravel reserved the right to oppose the payment of any additional fees. Finally, if anything remained in the fund after the payment of all eligible claims (including those of public health insurers), administration costs, or additional counsel fees, if any, then the residue would revert to MyTravel. The Settlement Agreement expressly stated that there was no admission of liability on the part of MyTravel.

[5] The Settlement Agreement was approved by Perell J. pursuant to s. 29 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“Act”) on February 23, 2011: Lavier v. MyTravel Canada Holidays Inc., 2011 ONSC 1222 (“Approval Decision”).

[6] After the settlement was fully administered, $333,306.79 had been paid to the 354 Class Members who submitted eligible claims, representing a take-up rate of 8.85% of the Class Members or 16.7% of the settlement fund provided for by the Settlement Agreement. At this point, Class Counsel sought approval of an additional fee in the amount of $395,000, which approval was granted. The appellant appeals from that order.

[7] In the course of the procedural history of this case, the motion judge rendered two decisions that are relevant to the resolution of this appeal. The first is the Approval Decision, which included approval of the Initial Counsel Fee of $600,000 provided for in the Settlement Agreement; the second is the order under appeal, by which Class Counsel were awarded an additional fee of $395,000. Since the two decisions are linked, I begin with a brief summary of each.

(1) The decision approving the Settlement Agreement

[8] Perell J. reviewed the procedural history of the case, as well as the key details of the Settlement Agreement. He noted that not only did Class Counsel recommend the settlement as fair, reasonable and in the best interests of the class, but also that Class Counsel anticipated that all claims, including those of public health insurers, could be paid from the capped fund without resorting to pro rata decreases.

[9] In the context of applying the test for settlement approval from Dabbs v. Sun Life Assurance, [1998] O.J. No. 1598 (Gen. Div.), Perell J. considered litigation risk as a major factor favouring approval and found it to be “considerable”.

[10] Some of the factors that he found were less favourable to the settlement included that the settlement fund was reversionary, and that there was a possibility that the take-up would be low and the reverting residue correspondingly high. Perell J. also observed that there might be a disincentive for Class Counsel to increase the take-up rate if the residue were to be subject to a claim by Class Counsel for additional fees.

[11] On balance, however, Perell J. was satisfied that the settlement was in the best interests of the Class Members, and approved it. One caution that was given was that the quality of the settlement (a factor relevant to the approval of class counsel fees) would ultimately depend on the degree of take-up.

[12] Perell J. then turned to consider the separate question of the Initial Counsel Fee that was provided for in the Settlement Agreement. Applying Smith v. National Money Mart, 2010 ONSC 1334, [2010] O.J. No. 873 (S.C.), he observed that whether the fee was fair and reasonable depended on the litigation risk and the degree of success achieved. The fee may include a premium but the fees must not bring about a settlement that is in the interests of the lawyers but not in the best interests of the Class Members as a whole.

[13] He observed that the $600,000 Initial Counsel Fee represented a multiplier of approximately 1.2 on the value of the lawyers’ time, and a percentage of 21% of the value of the settlement if fully taken up. He observed that Class Counsel had earned their fee to date; any additional fees would have to be justified, including by reference to a reasonable take-up of the benefits of the settlement.

(2) The decision approving additional fees

[14] On the motion for additional fees, MyTravel took the position that the Initial Counsel Fee was adequate compensation; a higher fee would create the perception that Class Counsel were the predominate beneficiaries of the settlement. In addition, MyTravel argued that the low take-up rate demonstrated that the action was not important to the class as a whole, and the court should not approve a fee so disproportionate to the actual take-up.

[15] Class Counsel, on the other hand, emphasized the risks undertaken, the success achieved, and what, it submits, was an acceptable take-up rate. In their submission, the Initial Counsel Fee was not a sufficient incentive for future class counsel to assume the litigation risks of class proceedings.

[16] In deciding to grant the request for additional fees, the motion judge stated that there are no bad optics in this case, that Class Counsel’s requested additional fee was fair and reasonable, and that MyTravel over-employed the take-up rate as a relevant factor. He held that in determining whether to approve an additional counsel fee, both for the immediate case and as a matter of policy, the take-up rate is not always an appropriate measure of whether a fee is fair and reasonable. Rather, if the settlement needed to be valued in this case, it should be valued on the basis of the funds made available to the Class and not based on the amount of the funds actually taken up by the Class.

[17] The motion judge observed that if the notice program had been more robust, perhaps more Class Members would have taken up the settlement. He found, though, that the notice program was reasonable, and that the 354 Class Members who took up the settlement might approximate the number of Class Members who had genuine and provable claims. He noted that it was always doubtful that all 4000 Class Members suffered from the norovirus outbreak. On this analysis of the “class size”, therefore, it may be that the take-up rate approached 100 percent. He held that Class Counsel achieved a settlement fund for all 4000 Class Members, whether they made claims or not.

[18] The motion judge found support for the approach of ignoring the take-up rate in valuing the settlement in jurisprudence from the United States and Quebec that appears to recognize the objective value in a collective result or entire fund. In this regard, he cited the decisions of Boeing v. Van Gemert, 444 U.S. 472 (1980); Masters v. Wilhelmina Model Inc., 473 F.3d 423 (2nd Cir. 2007); and Sony BMG Musique (Canada) Inc. v. Guilbert, 2007 QCCS 432, var’d 2009 QCCA 231. He quoted Masters, at p. 437, for the following proposition:

The entire Fund, and not some portion thereof, is created through the efforts of counsel at the instigation of the entire class. An allocation of fees by percentage should therefore be awarded on the basis of the total funds made available, whether claimed or not.

B. Issue

[19] The issue on the appeal is whether the motion judge erred by approving an additional fee of $395,000 for Class Counsel in this class action.

C. analysis

(1) Standard of review

[20] The fixing or approval of fees is a discretionary decision. An appellate court will generally be reluctant to interfere with the exercise of judicial discretion by an experienced class action judge.

[21] This court has said that it will only reverse the decision of a motion judge on a motion for the approval of class counsel fees if the motion judge gave either no weight or insufficient weight to considerations relevant to the decision: Gagne v. Silcorp (1998), 1998 CanLII 1584 (ON CA), 41 O.R. (3d) 417 (C.A.), at p. 422.

(2) Approval of Class Counsel Fees

[22] There are a variety of ways that a fee agreement, in the ordinary course, can be structured, including providing for fees determined as a percentage of recovery, on the basis of a multiplier on the time spent as multiplied by an hourly rate, or as a lump sum: see Ward Branch, Class Actions in Canada, looseleaf (Toronto: Canada Law Book, 2012) at para. 7-175. Whatever method is used, the fee must ultimately be fair and reasonable in all the circumstances of the case: Gagne, at p. 425. Class counsel typically bears the burden of satisfying that a fee is justified on this test, and ought to be approved.

[23] Sections 32 and 33 of the Act provide for the determination of class counsel fees in the context of a class proceeding, where they are paid or payable on the basis of a fee retainer agreement. At the outset, I note that these provisions do not govern in this case, as both provisions refer only to fee agreements between “a solicitor and a representative party”. In this case, the Initial Counsel Fee providing for $600,000 was awarded pursuant to the Settlement Agreement between Ms. Lavier and MyTravel.

[24] Because the Initial Counsel Fee was negotiated to be over and above the amount available to fund the claims of class members, and because any additional fee requests could only be made after the claims process was exhausted, there was no part of Class Counsel’s fees that could be understood as arising from the retainer agreement between Class Counsel and the representative plaintiff. For that reason, the jurisdiction for court approval of fees in this case does not come from the statute, except indirectly.

[25] In such a case, the court in Ontario has jurisdiction to approve the fees as part of its approval of the settlement agreement, pursuant to s. 29(2) of the Act. Indeed this is what happened in this case, and the Initial Counsel Fee was approved as fair and reasonable in the order approving the Settlement Agreement. Once approved, a settlement binds all class members: s. 29(3).

[26] In this case, the Settlement Agreement itself was also a source of supervisory jurisdiction for the court’s approval of class counsel fees. Not only was the Initial Counsel Fee subject to court approval, but also any request by Class Counsel for an additional fee. That being said, this source of the court’s jurisdiction to approve fees does not supplant the objectives of the Act or their importance.

[27] As a result, the foregoing does not change the standard by which the fee is assessed. There is no reason here to depart from the test in Gagne, the leading decision from this court on the approval or fixing of class counsel fees, which is that the particular fee arrangement be fair and reasonable. Courts determine whether a fee is fair and reasonable by assessing the risks assumed by class counsel and the results achieved for the class, and always in light of the objectives of class proceedings: Gagne, at p. 423.

[28] However, the context of a settlement agreement may take on particular importance, coming to bear both on how the facts of this case are considered and also what objectives prevail.

[29] The principal objective of class action legislation is to provide access to justice for those whose claims could not be advanced economically or efficiently in an individual proceeding: Gagne, at p. 422.

[30] In Gagne, Goudge J.A. recognized that the statutory provision for contingency fees that use a multiplier in s. 33 of the Act is one way that this objective can be attained. On that reasoning, as the motion judge properly stated, the fair fee for class counsel whose fees are provided for in a settlement may include a premium to recognize the risks they have undertaken and the results achieved for the class: Sparvier v. Canada (Attorney General), 2006 SKQB 533, [2006] S.J. No. 752 (Q.B.).

[31] Gagne, at p. 425, is also instructive for what it suggests about proportionality as part of the framework by which fair compensation to class counsel might be considered:

One yardstick by which this can be tested is the percentage of gross recovery that would be represented by the multiplied base fee. If the base fee as multiplied constitutes an excessive proportion of the total recovery, the multiplier might well be too high. A second way of testing whether the ultimate compensation is fair and reasonable is to see whether the multiplier is appropriately placed on a range that might run from slightly greater than one to three or four in the most deserving case. Thirdly, regard can be had to the retainer agreement in determining what is fair and reasonable. Finally, fair and reasonable compensation must be sufficient to provide a real economic incentive to solicitors in the future to take on this case and to do it well.

[32] The principle of proportionality has been recognized and utilized by lower courts, who have indicated that fees should not be “clearly excessive” or “unduly high” in the sense of having little relation to the risk undertaken or the result achieved: Parsons v. Canadian Red Cross Society (2000), 2000 CanLII 22386 (ON SC), 49 O.R. (3d) 281 (S.C.), at para. 58; Martin v. Barrett, [2008] O.J. No. 2105, at para. 43; Boulanger v. Johnson & Johnson Corp., 2010 ONSC 2359, at para. 15.

[33] Proportionality in this sense is important precisely because of the objectives of the Act. If the objective is to compensate class members who have been injured, through the judicial economy of the class proceeding, courts should ensure it is they and not class counsel who are benefitting.

[34] No one factor is determinative, but certain factors may take on a heightened importance in the facts of a particular case.

(3) Application

[35] In this case, the base fee (the time represented by counsel’s work multiplied by a standard rate) does not appear to be challenged. It is subsumed in the amount provided for by the Initial Counsel Fee. The real issue is the “premium” that ought to be applied to the base fee such that the ultimate fee is fair and reasonable in light of the objectives of the Act. These objectives include providing access to justice to those with claims that would otherwise not be brought, and providing an economic incentive to class counsel such that they will continue to take class action cases and do them well: Gagne, at p. 422. Because the Initial Counsel Fee was found to be fair and reasonable, the issue in this case could be framed as what “additional” premium, if any, is fair and reasonable.

[36] Before us, the appellant takes the position that the motion judge erred in formulating a test that disregards the actual benefit to the class. The actual recovery by the class of $333,306.79 cannot justify a total class counsel fee three times that amount. As a result, it submits, the motion judge was plainly wrong in awarding class counsel fees grossly disproportionate to the value of payments to class members. The appellant points to the motion judge’s conclusion in the Approval Decision that Class Counsel had earned their fee to date and would have to justify any additional fees, including showing that the benefits of the settlement were reasonably taken up.

[37] The respondent, on the other hand, argues that the additional fees give rise to a multiplier on Class Counsel’s base time of approximately 2, which is on the lower end of court-approved multipliers, particularly for challenging cases carrying significant litigation risk. The respondent submits that the motion judge correctly identified and considered the various non-dispositive factors in the fee approval jurisprudence, and made no error in the weighing of these factors. As a result, awarding a fee in the cumulative amount of $995,000 was well within the motion judge’s discretion.

[38] For the following reasons, I agree that the motion judge correctly identified the factors to be applied on the fee approval. However, his analysis minimizes the significance of the actual recovery to the class in this case and leads him to award a fee that is grossly disproportionate to the results achieved and the risks undertaken.

(a) Valuing the benefit to the class

[39] The decision of the motion judge is premised on the fact that the take-up rate is not necessarily a particularly appropriate measure of whether the requested fee is fair and reasonable; the benefit to the class should be valued, rather, on the basis of the total funds made available.

[40] The argument is that because a fund was created for the whole class of 4000 members, whether they made claims or not, that is the appropriate measure of access to justice. He found support for this position in American jurisprudence and in recent case law from Quebec that appears to emphasize the objective value that a collective result has in a given class action and, consequently, ignores the take-up rate as a factor.

[41] With respect, I do not agree with this analysis. In the context of this case, the take-up rate had a heightened significance that was not adequately recognized by the motion judge in his analysis of the value of the settlement.

[42] There are some salient facts that underlie why I reach the conclusion that I do. First, as the respondent concedes, it was not possible to know how many of the 4000 class members fell ill during the period of time relevant to the Settlement Agreement. As a result, the class size was determined by reference to all of the individuals who might have travelled to the relevant locations within a particular time frame.

[43] The motion judge, too, recognized, at paras. 37 and 38 of his decision, that it was doubtful that all 4000 class members suffered from the outbreak of norovirus. He observed that “[i]f the Class size was adjusted to those Class Members with meritorious claims, it may be that the take-up rate approaches 100 percent”.

[44] I do not suggest that Class Counsel are to be punished for their definition of the class, only that this, for lack of a better word, indeterminacy as between class size and potential recovery for the class in this case highlights the importance to be given to the take-up rate as something that could potentially indicate whether the appropriate valuation of the benefit to the class should be on the basis of the total fund or on the basis of actual recovery. Once it was known, it ought to have been emphasized as the better measure of the success of the settlement in this case.

[45] I do not disagree with the motion judge that the sound principle is to value the settlement to the class in terms of access to justice; rather, I suggest that access to justice in this case is better represented by the actual distribution to the class. While Class Counsel achieved a total fund of $2.25 million, the negotiated reversionary interest in favour of the appellant, coupled with the analysis above, suggests this was not the type of collective result that would justify valuing the benefits of the settlement on the basis of the entire fund made available. I can find no evidence in the record that the entire fund was intended to comprise the “access to justice” component of the settlement.

[46] This is unlike the obvious value in a settlement where the residue is distributed by way of a cy près distribution to a charity, which the motion judge recognized, at para 44. In such a case, the correlation between what is achieved and “access to justice” is evident, and the total fund is an appropriate measure of the value of the settlement.

[47] In Stewart v. General Motors of Canada Ltd., [2008] O.J. No. 4426 (S.C.), Cullity J. considered a similar problem of class indeterminacy and the significance of take-up. In that case, a class action of national scope involving design deficiencies in cars and trucks, the class was defined by reference to “[a]ll consumers resident in Canada… who own or lease, or who have in the past owned or leased, a Qualifying Vehicle and who incurred an expense” before a given date.

[48] Cullity J. expressed his concern with the possibility that ultimately it would be the lawyers who might be the principal beneficiaries of the settlement. In deciding whether to approve the class counsel fee now or later, Cullity J. provided some guidance on the relationship between the indeterminacy of the class’s potential recovery and evaluating the degree of success for the class. He observed, at paras. 51 and 52:

The problem arises not just because, until the claims period has expired, it will be uncertain how many of the class members will make valid claims – and in which of the three categories those claims will fall. In this case, the parties have been unable to provide any estimate of the number of class members. It is projected that 900,000 of the specified vehicles may have been sold in Canada and not repaired under warranty. In their materials prepared for the purpose of a contested certification motion, plaintiffs’ counsel suggested that there could be 400,000 class members – namely owners and former owners of vehicles who paid for repairs within the class period. I am now told that none of the parties’ experts is able to confirm this, or any other number, as a reasonable estimate.

It has been recognized in other cases, that, for the purposes of fee approval, it is legitimate to look at the actual recovery achieved for the benefit of the class. This is consistent with the requirement that the court should look at the degree of success as well as the degree of risk: Gagne v. Silcorp Ltd. 1998 CanLII 1584 (ON CA), [1998] O.J. No. 4182 (C.A.) at para. 15. Here there has been “success” as required to justify a contingent fee agreement pursuant to section 33(2) of the CPA, but the degree of success is impossible to estimate on the basis of the agreement and the evidence presented by the parties.

[49] What this suggests is that when it is uncertain how many class members will make claims under a settlement, it is when the take-up rate is known that the information relevant to assessing the results achieved is present, and one can assess the connection between the efforts of counsel and what was achieved for the class. Otherwise, there is a real risk that a disproportionate fee might result.

[50] Against this backdrop, the motion judge’s error, with respect, was to adopt an analysis that rendered the crucial take-up factor as a distant second to the total fund. In my view, the record in this case does not support valuing the settlement (or the access to justice in this case) at the full amount of the total negotiated fund.

(b) What is the “fair and reasonable” compensation in this case?

[51] The motion judge found that the Settlement Agreement was the result of lengthy and adversarial negotiations. The respondent contends that it does not follow from the fact that Class Counsel were only able to extract a modest multiplier from the defendant for fees that a further fee would not be fair or reasonable. This may be true; however, for two reasons, the $600,000 Initial Counsel Fee ought to be the starting point in the inquiry.

[52] First, the motion judge accepted the Initial Counsel Fee as a “fair and reasonable fee” in the Approval Decision. This assessment would necessarily have been made on the basis of what was known at the time: a fund with a potential value to the class of $2.25 million, and the litigation risks undertaken by class counsel to reach the settlement approval stage.

[53] The decision approving the Settlement Agreement recognized there was some apparent value and benefit to class members. As observed by Nordheimer J. in Gariepy v. Shell Oil Co., [2003] O.J. No. 2490 (S.C.), at para. 19, the decision approving a settlement agreement makes prospective findings in respect of the apparent value of the settlement to the class. The appropriate measure of the value only becomes known when the take-up is known:

If actual experience shows that the class members did not avail themselves of the settlement then it may be that, notwithstanding the apparent value of the settlement, its actual value differs. Having said that, such a conclusion does not mean that the settlement is valueless nor does it mean that such concerns would lead to no fees being paid to class counsel. Rather, what this issue goes to is the level of premium or “multiplier” that it is appropriate to approve.

[54] If the $600,000 Initial Counsel Fee was considered to be fair and reasonable in light of the prospective value of the fund achieved, it seems paradoxical to award a greater amount without some additional justification being demonstrated by the fee claimant.

[55] I would add that the value of the settlement, as represented by its take-up, was the only prospective element identified in the Approval Decision when the $600,000 fee was found to be fair and reasonable. Any litigation risk for Class Counsel, for example, had ended with the approval of the Settlement Agreement. I would note that it is litigation risk that is cited most frequently as justifying generous premiums on counsel fees in class proceedings.

[56] Second, the Initial Counsel Fee was not a base fee. It already represented a multiplier of approximately 1.2 on the lawyers’ time, as found by the motion judge in the Approval Decision, at para. 16. The question, therefore, is, again, whether there is any justification for increasing the multiplier.

[57] As mentioned earlier, the considerations in the analysis of the fairness and reasonability of the fee are the results achieved and the risks involved in taking the case on. The first factor has been discussed in detail, so at this stage I will only repeat that, on the facts of this case, the take-up rate as it reflected the actual benefit to the class was an appropriate measure of the results achieved.

[58] Turning to risk, I would observe that this is the factor that most justifies the imposition of a multiplier or premium on counsel fees in class proceedings. As Winkler J. observed in Parsons, at para. 18, “[i]n the context of the CPA, the premium on fees for undertaking risk in litigation means that there should be a reward for taking on meritorious but difficult matters.”

[59] The litigation risk in this case (a) ended with the conclusion of the Settlement Agreement, and (b) was therefore part of the context in which the motion judge approved the Initial Counsel Fee as “fair and reasonable”. I accept the submission of the appellant that the risk taken on by Class Counsel in agreeing to act for Ms. Lavier and the class had already been recognized and rewarded.

[60] To conclude, we can assess the relative merits of the Initial Counsel Fee and the cumulative $995,000 fee received by Class Counsel by applying the “yardsticks” in the framework set out by Goudge J.A. in Gagne, at p. 425, to each.

[61] The starting point for the “yardsticks” analysis must be recognition of the result achieved for people who fell ill at the resort. In this case, the result was that approximately nine percent of the class received compensation through the efforts of Class Counsel and this compensation amounted to about one-sixth of the total negotiated fund. This is not a spectacular result.

[62] By way of contrast, with the addition of the $395,000 fee approved by the motion judge, the award under appeal results in a total class counsel fee of almost $1 million. As a percentage of the value of the actual recovery in this case, this represents nearly three times the value of the settlement to the class. That is a clearly disproportionate result.

[63] While the additional fee requested would yield a cumulative multiplier of approximately 2 (also, depending on the facts, within a reasonable range), this must be balanced against the first yardstick and found wanting in light of the principle of proportionality. Assessed against the final factor, the provision of a real economic incentive to the class action bar, I would add that the viability of the class action regime does not depend on an overly generous reward being approved in every case.

[64] In either scenario, I do not believe the expectations of the representative plaintiff as determined by the retainer agreement, in the record before us, has any independent significance in a context where both the Initial Counsel Fee and any additional class counsel fees are provided for in a settlement agreement that gives a reversionary interest to the defendant in the residue, and where the fees are to be paid by the class action defendant itself, over and above the actual recovery to the class. I am guided by the reasoning of Nordheimer J. in Gariepy, at para. 15, in this regard.

[65] Accepting that the choice of the premium in any given case is, as expressed by Goudge J.A. in Gagne, at p. 425, “an art, not a science”, the motion judge erred in his analysis of whether the premium he ultimately chose was a fair and reasonable fee in the circumstances of this case. With the approval of the additional fee, Class Counsel’s compensation was manifestly disproportionate to the results actually achieved for the class. A fee in the amount of $600,000 is a fair and reasonable compensation in all the circumstances of the case.

D. disposition

[66] I would allow the appeal and set aside the additional fee of $395,000 to Class Counsel. This amount should be returned to the appellant as part of the residue of the settlement fund.

[67] The appellant is entitled to its costs of the appeal fixed, as counsel agree, at $23,000 inclusive of disbursements and applicable taxes.

Released: February 14, 2013 (“J.L.”)

“J.C. MacPherson J.A.”

“I agree. John Laskin J.A.”

“I agree. E.E. Gillese J.A.”