Robert Gain

This is a counsel fee approval motion in an ongoing competition law class action.

Class counsel sought approval for an additional $13.7 million in fees, bringing the total to approximately $19.7 million, representing an 18.5% contingency fee or a 3.8 multiplier on docketed time, based on $107 million in settlements achieved to date.

The court considered factors such as risk, complexity, skill, and results, and assessed the degree of success as 19% of the estimated damages.

The court found the requested fee to be unreasonable and reduced the additional fee to $7 million, resulting in a total fee of $13 million, representing a 12% contingency fee or a 2.5 multiplier.

The court emphasized the need to balance incentives for class counsel with the access to justice principles of the Class Proceedings Act, 1992, and to avoid overcompensating counsel, which could disincentivize further robust litigation against non-settling defendants.

This motion concerned the approval of an Administration Protocol and a Distribution Protocol for the net proceeds of court-approved settlements in an ongoing class action alleging a conspiracy among financial institutions to fix prices in the foreign exchange (FX) market.

The court reviewed the proposed protocols, which differentiated between direct and indirect claimants, allocated funds (80% direct, 20% indirect), and incorporated expert analysis for damage calculation, conversion ratios, and liquidity factors.

The court found the protocols to be fair, reasonable, and in the best interests of the class, approving them without objection.

The representative plaintiff brought a motion for approval of a $15 million settlement in a class action against Ontario regarding systemic negligence and breach of fiduciary duty at provincially-run schools for the deaf.

The court found the settlement to be poor for the majority of the class, as 90% of the student class and 100% of the family class would receive no compensation.

However, given the significant litigation risks and the lack of aggregate damages available, the court approved the settlement as falling within the zone of reasonableness.

The court also approved class counsel's fee request of $3.75 million, but on the condition that counsel donate $1.5 million to a charity for the deaf to introduce a cy-près element and provide some benefit to the uncompensated class members.

This motion concerned the certification of a class proceeding against the provincial Crown for alleged physical, emotional, and sexual abuse perpetrated against students at three residential schools for the deaf.

The action pleaded claims in negligence and breach of fiduciary duty, as well as Family Law Act derivative claims.

The motion for certification was brought on consent and was granted, as all criteria under the Class Proceedings Act, 1992 were satisfied.

The defendant brought a motion to set aside two default judgments arising from a breach of contract action involving a technology services agreement.

The court applied the established test for setting aside default judgments, considering delay, explanation for the default, and the existence of a triable defence.

The court held that the motion to set aside the first partial default judgment for the liquidated portion of the claim was brought with undue delay and lacked a reasonable explanation or evidence of a meritorious defence.

However, the court accepted a limited explanation regarding the second judgment for the unliquidated portion of damages and found that issues relating to quantum and equitable remedies warranted adjudication on the merits.

The second judgment was set aside on conditions, including payment of the first judgment and costs.

In a certified class proceeding alleging a price-fixing conspiracy in the market for DRAM (dynamic random access memory) devices contrary to Part IV of the Competition Act and related torts, the representative plaintiffs sought court approval of a negotiated settlement with one defendant.

The settlement required the settling defendant to pay $5.75 million for the benefit of class members in Ontario, British Columbia, and Québec and to provide extensive cooperation in the ongoing litigation against non-settling defendants.

The agreement also included a bar order preventing contribution and indemnity claims against the settling defendant while permitting discovery cooperation and proportional liability determinations at trial.

Applying established class action settlement approval principles, the court concluded the settlement was fair, reasonable, and in the best interests of the class.

The settlement approval order was granted.

After dismissing an application for a Norwich order compelling a newspaper to reveal confidential sources related to a business news story, the court addressed the issue of costs.

The unsuccessful applicant argued that no costs should be awarded because the proceeding raised novel and public interest issues linked to a proposed securities class action.

The court held that although the litigation had some public interest elements, it was fundamentally a private claim seeking recovery of trading losses.

Applying the factors in Rule 57.01 and considering the access to justice concerns noted by the Court of Appeal in class action jurisprudence, the court reduced the respondents’ claimed costs but fixed a substantial award.

Costs were ordered against the applicant on a partial indemnity basis.

The applicant sought a Norwich order compelling a journalist and newspaper to disclose the identities of confidential sources quoted in an article concerning the BCE leveraged buy-out negotiations.

The applicant alleged the sources’ statements were misleading or unlawful under the Securities Act and caused trading losses, and intended to pursue a proposed securities class action against them.

The court applied the Norwich test together with the Wigmore framework for journalist‑source privilege.

It found that any alleged breach of securities law was speculative and minimal, and that the public interest in protecting confidential journalistic sources outweighed the limited interest in disclosure for a civil claim.

The journalist‑source privilege was therefore upheld and disclosure refused.

In a proposed class action alleging a conspiracy among DRAM manufacturers to fix prices, the plaintiffs brought a motion to certify the action for settlement purposes against one defendant following a settlement agreement.

The settlement required the defendant to pay $5.75 million for the benefit of class members in Ontario, British Columbia, and Québec.

The court considered the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and determined that the criteria for certification were satisfied.

The court also approved the proposed notice and notice plan, which aligned with a similar approval in British Columbia.

The motion was unopposed and the orders were granted as requested.