Sa'd v. The Remington Group Inc. et al.

[Indexed as: Sa'd v. The Remington Group Inc.]

Ontario Reports

Ontario Superior Court of Justice,

Perell J.

March 6, 2013

115 O.R. (3d) 627 | 2013 ONSC 1404

Case Summary

Civil procedure — Class proceedings — Plaintiff bringing proposed class action on behalf of purchasers of condominium units alleging that [page628] purchasers were overcharged for development charges — Parties reaching settlement agreement that provided for refund to class members of between 52 per cent and 73 per cent of disputed charges — Action certified as class proceeding for settlement purposes and settlement approved — Settlement fair and reasonable — Class counsel's fee approved — Requested fee of $144,500 being less than value of services provided and being reasonable.

The plaintiff brought a proposed class action on behalf of purchasers of condominium units alleging that the purchasers were overcharged for development charges. The parties reached a settlement agreement in which the defendants agreed to establish a settlement fund of $578,000. The plaintiff brought a motion to have the action certified as a class proceeding for settlement purposes, for approval of the settlement agreement and for approval of class counsel's fee.

Held, the motion should be granted.

All of the criteria for certification were met. The settlement agreement, under which class members would receive a refund of between 52 per cent and 73 per cent of the disputed development charges, was fair and reasonable. The plaintiff and class counsel had entered into a retainer agreement that provided for a 25 per cent contingency fee. The services performed by class counsel before this hearing had a value of approximately $170,000, inclusive of HST. The requested fee of $144,500 was less than the value of the services rendered and was fair and reasonable.

Cases referred to

Baxter v. Canada (Attorney General) (2006), 2006 41673 (ON SC), 83 O.R. (3d) 481, [2006] O.J. No. 4968, 40 C.P.C. (6th) 129, 153 A.C.W.S. (3d) 1044 (S.C.J.); Bellaire v. Daya, [2007] O.J. No. 4819, 162 A.C.W.S. (3d) 371, 49 C.P.C. (6th) 110 (S.C.J.); Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 1598 (Gen. Div.); Dabbs v. Sun Life Assurance Co. of Canada (1998), 1998 7165 (ON CA), 41 O.R. (3d) 97, [1998] O.J. No. 3622, 165 D.L.R. (4th) 482, 113 O.A.C. 307, 7 C.C.L.I. (3d) 38, 27 C.P.C. (4th) 243, [1999] I.L.R. I-3629, 82 A.C.W.S. (3d) 638 (C.A.), affg (1998), 1998 14855 (ON SC), 40 O.R. (3d) 429, [1998] O.J. No. 2811, 5 C.C.L.I. (3d) 18, 22 C.P.C. (4th) 381, [1998] I.L.R. I-3575, 80 A.C.W.S. (3d) 956 (Gen. Div.) [Leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 372]; Endean v. Canadian Red Cross Society, [2000] B.C.J. No. 1254, 2000 BCSC 971, [2000] 8 W.W.R. 294, 78 B.C.L.R. (3d) 28, 45 C.P.C. (4th) 39, 97 A.C.W.S. (3d) 550; Frohlinger v. Nortel Networks Corp., 2007 696 (ON SC), [2007] O.J. No. 148, 40 C.P.C. (6th) 62, 154 A.C.W.S. (3d) 542 (S.C.J.); Gagne v. Silcorp. Ltd. (1998), 1998 1584 (ON CA), 41 O.R. (3d) 417, [1998] O.J. No. 4182, 167 D.L.R. (4th) 325, 113 O.A.C. 299, 39 C.C.E.L. (2d) 253, 27 C.P.C. (4th) 114, 83 A.C.W.S. (3d) 125 (C.A.); Kelman v. Goodyear Tire and Rubber Co., 2005 803 (ON SC), [2005] O.J. No. 175, [2005] O.T.C. 36, 5 C.P.C. (6th) 161, 136 A.C.W.S. (3d) 411 (S.C.J.); Maxwell v. MLG Ventures Ltd. (1996), 1996 8039 (ON SC), 30 O.R. (3d) 304, [1996] O.J. No. 2644, 11 O.T.C. 292, 3 C.P.C. (4th) 360, 64 A.C.W.S. (3d) 742 (Gen. Div.); National Trust Co. v. Smallhorn, [2007] O.J. No. 3825, 64 C.C.P.B. 70, 52 C.P.C. (6th) 123 (S.C.J.); Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065, 59 C.P.C. (6th) 166, 166 A.C.W.S. (3d) 223 (S.C.J.); Parsons v. Canadian Red Cross Society, [1999] O.J. No. 3572, 103 O.T.C. 161, 40 C.P.C. (4th) 151, 91 A.C.W.S. (3d) 351 (S.C.J.); Parsons v. Canadian Red Cross Society (2000), 2000 22386 (ON SC), 49 O.R. (3d) 281, [2000] O.J. No. 2374, [2000] O.T.C. 968, 46 C.P.C. (4th) 236, 97 A.C.W.S. (3d) 1082 (S.C.J.); Serwaczek v. Medical Engineering Corp., [1996] O.J. No. 3038, 13 O.T.C. 63, 3 C.P.C. (4th) 386, 65 A.C.W.S. (3d) 340 (Gen. Div.); Sparvier v. Canada (Attorney General), [2007] S.J. No. 145, 2007 SKCA 37, [2007] 7 W.W.R. 682, 293 Sask. R. 54, 39 C.P.C. (6th) 133, 156 A.C.W.S. (3d) 936, affg [2006] S.J. No. 752, 2006 SKQB 533, 290 Sask. R. 111, 35 C.P.C. (6th) 110, 153 A.C.W.S. (3d) 1043; [page629] Sutherland v. Boots Pharmaceutical plc, [2002] O.J. No. 1361, [2002] O.T.C. 233, 21 C.P.C. (5th) 196, 113 A.C.W.S. (3d) 768 (S.C.J.); Vitapharm Canada Ltd. v. F. Hoffman-La Roche Ltd. (2005), 2005 8751 (ON SC), 74 O.R. (3d) 758, [2005] O.J. No. 1118, [2005] O.T.C. 207, 12 C.P.C. (6th) 252, 138 A.C.W.S. (3d) 19 (S.C.J.); Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., [2005] O.J. No. 1117, [2005] O.T.C. 208, 138 A.C.W.S. (3d) 20, 12 C.P.C. (6th) 226 (S.C.J.); Wamboldt v. Northstar Aerospace (Canada) Inc., [2009] O.J. No. 2583, 72 C.P.C. (6th) 386, 178 A.C.W.S. (3d) 33 (S.C.J.); Windisman v. Toronto College Park Ltd., [1996] O.J. No. 2897, 10 O.T.C. 375, 3 C.P.C. (4th) 369, 65 A.C.W.S. (3d) 207 (Gen. Div.)

Statutes referred to

Class Proceedings Act, 1992, S.O. 1992, c. 6 [as am.], ss. 5(1), 29(2)

MOTION to certify an action as a class proceeding for settlement purposes and for approval of the settlement and class counsel's fee.

Sean M. Grayson, for plaintiff.

Michael F. Cooper, for defendants.

PERELL J.: —

I. Introduction

[1] The plaintiff, Samir Sa'd, brings a motion (a) to have his action certified as a class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6 for settlement purposes; (b) for approval of the settlement agreement signed on January 23, 2013; and (c) for approval of class counsel's fee. Class counsel is the law firm of Roy Elliott O'Connor LLP. There are also requests for ancillary relief.

[2] The defendants, the Remington Group Inc., Rouge Residences I Inc. ("Rouge I") and Rouge Residences II Inc. ("Rouge II") consent to Mr. Sa'd motions for certification and for approve of the settlement agreement.

II. Factual Background

[3] Mr. Sa'd and other members of the proposed class purchased condominium units from Rouge I and Rouge II in a development in Markham, Ontario that included the Rouge Bijou Condominium Residences. Mr. Sa'd alleges that they were overcharged for development charges. There are approximately 400 class members.

[4] The defendants Remington Group, Rouge I and Rouge II were the developers of the residential project in Markham. [page630]

[5] On September 12, 2011, Mr. Sa'd commenced this proposed class action, and on September 29, 2011, the defendants delivered a notice of intent to defend.

[6] In his statement of claim, Mr. Sa'd advances claims for general damages in breach of contract, unjust enrichment and/or negligent misrepresentation.

[7] No steps were taken in the litigation, but the parties attempted to settle the action.

[8] A serious risk in pursuing the litigation is that Rouge I and Rouge II were likely judgment proof and the claim against Remington Group would depend upon piercing the corporate veil.

[9] After months of negotiations, the parties signed a settlement agreement dated January 23, 2013.

[10] From the negotiations, Mr. Sa'd determined that purchasers had different responses to the development charges; that is, (a) some purchasers paid the full amount of the disputed charges; (b) some purchasers paid $3,000 of the disputed charges; (c) some purchasers signed an amendment to the agreement of purchase and sale that capped the adjustments due on closing; (d) some purchasers paid the disputed charges at closing, but upon complaint were given additional consideration and signed a full and final mutual release (the "levy adjustment release"); (e) some purchasers disputed the development charge increase and paid the charge in escrow which funds have or are being returned to them; and (f) some purchasers were successful in the Small Claims Court and have been reimbursed.

[11] The settlement agreement will provide compensation to those purchasers in categories (a) to (d) above. There are 257 individuals in categories (a), (b) and (c). There are 145 individuals in category (d).

[12] The key terms of the settlement agreement are as follows:

The defendants have agreed to pay $578,000 to a settlement fund, to be divided among two groups of class members: non-releasing and releasing class members.

Non-releasing class members (class members who did not sign a release in favour of any of the defendants) will receive their pro rata share of approximately $400,875.

The share of non-releasing members will depend upon the number of opt-outs. If no opt-outs are received, class members who paid $3,000 will recover approximately $1,978.27 less legal fees. Thus, for example, if the court approves a [page631] contingency fee of 25 per cent, class members who paid $3,000 would receive a net recovery of $1,483.70. By way of further example, for class members that paid $7,680.59, they would receive a gross amount of approximately $5,064.75 less legal fees, for a net amount of $3,798.56.

Class members who previously signed a levy adjustment release on closing will receive $300 less legal fees, for a net amount of approximately $225 each.

The settlement agreement provides that this settlement is dependent on the number of class members participating in this settlement. If more than ten non-releasing class members who are to be paid their pro rata share of the settlement fund opt out, or more than 15 releasing class members opt out, the settlement agreement will be void and of no effect for all class members.

The defendants may, at their sole discretion, agree to a higher participation threshold.

[13] Counsel is requesting legal fees of $144,500 plus disbursements to be deducted from the settlement fund. This is 25 per cent of the total settlement fund under the retainer agreement between Mr. Sa'd and class counsel

III. Certification

[14] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if (a) the pleadings disclose a cause of action; (b) there is an identifiable class; (c) the claims or defenses of the class members raise common issues of fact or law; (d) a class proceeding would be the preferable procedure; and (e) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.

[15] Where certification is sought for the purposes of settlement, all the criteria for certification must still be met: Baxter v. Canada (Attorney General) (2006), 2006 41673 (ON SC), 83 O.R. (3d) 481, [2006] O.J. No. 4968 (S.C.J.), at para. 22. However, compliance with the certification criteria is not as strictly required because of the different circumstances associated with settlements: Bellaire v. Daya, [2007] O.J. No. 4819, 49 C.P.C. (6th) 110 (S.C.J.), at para. 16; National Trust Co. v. Smallhorn, [2007] O.J. No. 3825, 52 C.P.C. (6th) 123 (S.C.J.), at para. 8; Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065, 59 C.P.C. (6th) 166 (S.C.J.), at para. 9. [page632]

[16] The proposed class is defined as follows:

All individuals, corporations or partnerships who or which purchased condominium units from the defendants or any of one of them, in the properties known as Rouge Residences I and II and who were charged by and paid to the defendants, or any one of them, an increased development and/or other charge above what the defendants were themselves charged, but not including the Individuals Who Paid Into Escrow and the Small Claims Court Claimants.

[17] The proposed common issue is as follows:

Did the defendants, or any of them, charge the class excess development fees?

[18] Having reviewed the motion record, I am satisfied that all of the criteria for certification set out in s. 5 of the Class Proceedings Act, 1992 have been satisfied.

IV. Settlement Approval

[19] Under s. 29(2) of the Class Proceedings Act, 1992, a settlement of a class proceeding must be approved by the court to be binding on the parties.

[20] To approve a settlement of a class proceeding, the court must find that in all the circumstances the settlement is fair, reasonable and in the best interests of those affected by it: Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 1598 (Gen. Div.), at para. 9; Parsons v. Canadian Red Cross Society, [1999] O.J. No. 3572, 103 O.T.C. 161 (S.C.J.), at paras. 68-73.

[21] In determining whether to approve a settlement, the court, without making findings of facts on the merits of the litigation, examines the fairness and reasonableness of the proposed settlement and whether it is in the best interests of the class as a whole having regard to the claims and defences in the litigation and any objections raised to the settlement: Baxter v. Canada (Attorney General), supra, at para. 10.

[22] When considering the approval of negotiated settlements, the court may consider, among other things: (a) likelihood of recovery or likelihood of success; (b) amount and nature of discovery, evidence or investigation; (c) settlement terms and conditions; (d) recommendation and experience of counsel; (e) future expenses and likely duration of litigation and risk; (f) recommendation of neutral parties, if any; (g) number of objectors and nature of objections; (h) the presence of good faith, arm's-length bargaining and the absence of collusion; (i) the degree and nature of communications by counsel and the representative parties with class members during the litigation; and (j) information conveying to the court the dynamics of and the positions [page633] taken by the parties during the negotiation: Dabbs v. Sun Life Assurance Co. of Canada (1998), 1998 14855 (ON SC), 40 O.R. (3d) 429, [1998] O.J. No. 2811 (Gen. Div.), at pp. 440-44 O.R., affd (1998), 1998 7165 (ON CA), 41 O.R. (3d) 97, [1998] O.J. No. 3622 (C.A.), leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 372; Parsons v. Canadian Red Cross Society, supra, at paras. 71-72; Frohlinger v. Nortel Networks Corp., 2007 696 (ON SC), [2007] O.J. No. 148, 40 C.P.C. (6th) 62 (S.C.J.), at para. 8; Kelman v. Goodyear Tire and Rubber Co., 2005 803 (ON SC), [2005] O.J. No. 175, [2005] O.T.C. 36 (S.C.J.), at paras. 12-13; Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd. (2005), 2005 8751 (ON SC), 74 O.R. (3d) 758, [2005] O.J. No. 1118 (S.C.J.), at para. 117; Sutherland v. Boots Pharmaceutical plc, [2002] O.J. No. 1361, [2002] O.T.C. 233 (S.C.J.), at para. 10.

[23] A reasonable and fair settlement is inherently a compromise and a reasonable and fair settlement will not be and need not be perfect from the perspective of the aspirations of the parties. That some class members are disappointed or unsatisfied will not disqualify a settlement because the measure of a reasonable and fair settlement is not unanimity or perfection. See Baxter v. Canada (Attorney General), supra, at para. 21; Dabbs v. Sun Life Assurance Company of Canada (1998), 1998 14855 (ON SC), 40 O.R. (3d) 429 (Gen. Div.), supra, at p. 440 O.R.

[24] In the case at bar, the settlement agreement was the product of arm's-length good faith negotiations between counsel for the parties. Under the agreement, the defendants have agreed to settle this action by establishing a settlement fund of $578,000 to be distributed among members of the class in accordance with the terms of the settlement agreement. If this settlement is approved class members will receive a refund of between 52 per cent to 73 per cent of the disputed development charges.

[25] It is the opinion of class counsel that in the circumstances the settlement agreement is fair and reasonable and in the best interests of the class members. Mr. Sa'd also supports the settlement.

[26] There was one objector to the settlement. The objection was as follows:

[I]if the builder is willing to settle, they should pay each class action member back the full amount that is owed . . . AND the builder should pay for your firm's legal expenses. The final amount paid to the class action members should not be less than what we over-paid to the builder. It does not seem fair that we still do not get full restitution from the builder. This is not enough of a punitive measure against the builder. Class action members paid the builder in good faith at closing and they essentially ripped us off for a few thousand dollars each. [page634]

[27] The objector is disappointed in the amount of the settlement, but that disappointment does not show that the settlement is unfair or unreasonable or that it is not in the best interests of the class members, which is my own conclusion. The objector also has the alternative of opting out of the class and suing in Small Claims Court for a full recovery with the attendant risks and transaction costs.

[28] In my opinion, the settlement is a fair and reasonable one. The case at bar is an example of the Class Proceedings Act, 1992 working for its intended purposes of providing access to justice, behaviour modification and judicial economy. It is unlikely that but for a class action that the 400 class members would have obtained access to justice.

[29] I approve the settlement in accordance with the Class Proceedings Act, 1992.

V. Fee Approval

[30] On July 6, 2001, Mr. Sa'd and class counsel entered into a retainer agreement that provides for a 25 per cent contingency fee calculated after all expenses including disbursements have been deducted.

[31] The services performed by class counsel before this hearing have a value of approximately $150,000 pre-tax, totalling approximately $170,000 in fees, inclusive of HST.

[32] Class counsel is requesting to be paid its contingency fee of 25 per cent of the settlement fund as agreed to in the retainer agreement, inclusive of taxes and disbursements. Its fee request is $144,500, inclusive of tax and disbursements. Thus, the fees requested are less than the value of the services rendered.

[33] Class counsel will expend additional time and incur additional disbursements in finalizing this proceeding.

[34] Class counsel is also seeking to have approval of a referral fee of 15 per cent paid out of its fee paid to Carlson & Kociper PC by class counsel. This payment will not result in any additional payments from the class.

[35] Mr. Sa'd consents and supports the payment of the fees being requested by class counsel. He also consents and supports referral payment from class counsel to Calrson & Kociper PC.

[36] The fairness and reasonableness of the fee awarded in respect of class proceedings is to be determined in light of the risk undertaken by the lawyers in conducting the litigation and the degree of success or results achieved: Maxwell v. MLG Ventures Ltd. (1996), 1996 8039 (ON SC), 30 O.R. (3d) 304, [1996] O.J. No. 2644 (Gen. Div.); Windisman v. Toronto College Park Ltd., [1996] O.J. No. 2897, 10 O.T.C. 375 (Gen. Div.); [page635] Serwaczek v. Medical Engineering Corp., [1996] O.J. No. 3038, 13 O.T.C. 63 (Gen. Div.); Parsons v. Canadian Red Cross Society (2000), 2000 22386 (ON SC), 49 O.R. (3d) 281, [2000] O.J. No. 2374 (S.C.J.).

[37] Where the fee arrangements are a part of the settlement, the court must decide whether the fee arrangements are fair and reasonable, and this means that counsel are entitled to a fair fee, which may include a premium for the risk undertaken and the result achieved, 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: Sparvier v. Canada (Attorney General), [2006] S.J. No. 752, 2006 SKQB 533, at para. 43, affd [2007] S.J. No. 145, 2007 SKCA 37.

[38] Fair and reasonable compensation must be sufficient to provide a real economic incentive to lawyers to take on a class proceeding and to do it well: Gagne v. Silcorp Ltd. (1998), 1998 1584 (ON CA), 41 O.R. (3d) 417, [1998] O.J. No. 4182 (C.A.); Parsons v. Canadian Red Cross Society (2000), supra; Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., [2005] O.J. No. 1117, [2005] O.T.C. 208 (S.C.J.), at paras. 59-61.

[39] Factors relevant in assessing the reasonableness of the fees of class counsel include (a) the factual and legal complexities of the matters dealt with; (b) the risk undertaken, including the risk that the matter might not be certified; (c) the degree of responsibility assumed by class counsel; (d) the monetary value of the matters in issue; (e) the importance of the matter to the class; (f) the degree of skill and competence demonstrated by class counsel; (g) the results achieved; (h) the ability of the class to pay; (i) the expectations of the class as to the amount of the fees; (j) the opportunity cost to class counsel in the expenditure of time in pursuit of the litigation and settlement: Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., [2005] O.J. No. 1117 (S.C.J.), supra, at para. 67; Endean v. Canadian Red Cross Society, [2000] B.C.J. No. 1254, 2000 BCSC 971; Wamboldt v. Northstar Aerospace (Canada) Inc., [2009] O.J. No. 2583, 72 C.P.C. (6th) 386 (S.C.J.), at para. 33.

[40] In my opinion, considering the facts described above and the factors relevant to assessing the reasonableness of class counsel's fee request, I am satisfied that class counsel's fee request should be approved, and I do so in accordance with the Class Proceedings Act, 1992. [page636]

VI. Conclusion

[41] For the above reasons, I certify this action for settlement purposes, approve the settlement and approve class counsel's fee as requested.

[42] Order accordingly.

Motion granted.

End of Document