Court of Appeal for Ontario

Date: 2020-03-17 Docket: C67418

Judges: Hoy A.C.J.O., Paciocco and Nordheimer JJ.A.

Between:

Christopher Welsh Plaintiff (Respondent)

and

Her Majesty the Queen in right of Ontario Defendant (Appellant)

Counsel: Jonathan Sydor, for the appellant Shantona Chaudhury and Brodie Noga, for The Law Foundation of Ontario

Heard: March 13, 2020

On appeal from the order of Justice Edward P. Belobaba of the Superior Court of Justice, dated August 22, 2019, with reasons reported at 2019 ONSC 4204.

Reasons for Decision

[1] The defendant appeals from the order granted by the motion judge that determined that the 10 per cent levy payable to the Class Proceedings Fund under O. Reg. 771/92 of the Law Society Act, R.S.O. 1990, c. L.8 is to be applied to the total settlement funds available to the class members rather than to the amount of the settlement funds actually taken up by those class members.

[2] The relevant portion of the Regulation is s. 10(3) which reads:

The amount of the levy is the sum of, (a) the amount of any financial support paid under section 59.3 of the Act, excluding any amount repaid by a plaintiff; and (b) 10 per cent of the amount of the award or settlement funds, if any, to which one or more persons in a class that includes a plaintiff who received financial support under section 59.3 of the Act is entitled.

[3] The motion judge concluded that the plain wording of s. 10(3) of the Regulation supported the conclusion that the levy was to be applied to the amount of the settlement funds (after payment of legal fees and administrative costs) and not to the amount of the settlement funds that the members of the class actually received. He said, at paras. 33-34:

The dictionary definition of "entitled" is "the right to do or receive something."

Here, having paid the legal fees and notice and administration costs as per the settlement agreement, the class members were entitled (before the imposition of the 10 per cent levy) to receive $10.2 million. It is at this point that the CPF levy is calculated.

[4] We agree. The appellant’s position is contrary to the plain language of s. 10(3). If the Government had intended that the levy should be applied only to the amount actually received by the class members, they could easily have worded the Regulation to say so. For example, they could have stipulated that the levy applied to the “amount of the settlement funds paid out to the class members” or the “amount of the settlement funds actually received by the class members” or any number of other combination of words to achieve that result. Rather, the Government chose to word the Regulation in terms of the settlement funds to which the class members were “entitled”. In this case, the class members were entitled to $10.2 million. Whether they chose to take up their entitlement does not change the amount to which they were entitled.

[5] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed in the amount of $10,000 inclusive of disbursements and HST.

“Alexandra Hoy A.C.J.O.”

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”