COURT FILE AND PARTIES
COURT FILE NO.: 3957-11CP
DATE: 2013/11/22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Peter Rooney and Archie Leach (Plaintiffs)
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ArcelorMittal S.A., Lakshmi N. Mittal, Aditya Mittal, 1843208 Ontario Inc., Philippus F. Du Toit, Nunavut Iron Ore Acquisition Inc., Iron Ore Holdings, LP, NGP Midstream & Resources, L.P., NG_ M&R Offshore Holdings, L.P., Jowdat Waheed, Bruce Walter, John T. Raymond, John Calvert, Baffinland Iron Mines Corporation, Richard D. McCloskey, John Lydall and Daniella Dimitrov (Defendants)
BEFORE: Justice H. A. Rady
COUNSEL:
Charles M. Wright, for the Plaintiffs
Steve Tenai, for the Defendants ArcelorMittal S.A., Lakshmi N. Mittal, Aditya Mittal, 1843208 Ontario Inc., Phillipus F. Du Toit and Baffinland Iron Mines Corporation
Andrea L. Burke, for the Defendants Nunavut Iron Ore Acquisition Inc., Iron Ore Holdings, LP, NGP Midstream & Resources, L.P., NGP M&R Offshore Holdings, L.P., Jowdat Waheed, Bruce Walter, John T. Raymond and John Calvert
HEARD: November 21, 2013
ENDORSEMENT
[1] The plaintiffs seek the court’s approval of a third party funding agreement that, if approved, will bind the plaintiffs and class members. The defendants were given notice of the agreement and they are not opposing its approval. Plaintiffs’ counsel has also given notice of the agreement and this motion to large shareholder members of the class. No one voiced opposition.
[2] I was provided a factum as well as authorities in which third party funding agreements were considered. The proposed agreement contains a scaled and capped commission on any settlement or judgments obtained by the class. This responds directly to the concerns of Justice Leitch expressed in Metzler Investment GMBH v. Gildan Activewear Inc., [2009] O.J. No. 3315 (S.C.J.).
[3] Agreements such as this are becoming increasingly common and represent an alternative to seeking funding from the Class Proceedings Fund. Its terms represent a savings of a minimum of 3% over the Fund.
[4] Other agreements in substantially the same form have been approved by Justices Strathy and Perrell. Both have written on the subject, outlining the factors to be considered in determining whether to approve a funding agreement. I have considered those factors in connection with this agreement.
[5] In the circumstances, I am prepared to approve the agreement. An order has been signed and is available for pick-up.
“Justice H. A. Rady”
Justice H. A. Rady
Released: November 22, 2013