Court File and Parties
Court File No.: 5270/14 Date: 2019-04-10 Superior Court of Justice - Ontario
Re: Michael Bozsik, Plaintiff And: Livingston International Inc., Defendant
Before: Gray J.
Counsel: Louis Sokolov and J. Adam Dewar, for the Plaintiff Linda Plumpton and Rachael Saab, for the Defendant
Heard: April 9, 2019
Endorsement
[1] On April 9, 2019, I entertained a motion to approve the notice to class members of a motion to approve the settlement of this class proceeding, and to approve the fees and disbursements of class counsel. That hearing is to be held on June 21, 2019.
[2] I approved the notice, and I advised counsel that I would consider appointing an amicus to assist the court at the hearing of the motion, as discussed by the Court of Appeal in Smith Estate v. National Money Mart Co., 2011 ONCA 233, 106 O.R. (3d) 37.
[3] In that case, the Court of Appeal dealt extensively with the conundrum that arises where the court is required to approve the settlement, and class counsel’s fees and disbursements, where there is no real opposition. Indeed, as noted at para. 17 of the reasons of Juriansz J.A., unopposed motions in class proceedings are similar to ex parte proceedings.
[4] The approval of the settlement is not generally that difficult. Quite apart from the merits of the case, there are many practical considerations that come into play that will affect the reasonableness of a settlement. Most judges are relatively reluctant to second-guess counsel’s assessment of whether a settlement reflects a reasonable outcome, and the number of times a settlement has actually been disapproved is quite small.
[5] Approval of class counsel’s fees is another matter. At para. 80 of his reasons in Smith, Juriansz J.A. approved the list of factors that were applied by the motion judge:
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 issues; (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.
[6] To expect a motion judge to apply these factors in the absence of an adversarial forum is daunting. As noted by the Court of Appeal in Smith, there are a number of ways this can be addressed, of which the appointment of amicus is one.
[7] I have decided to appoint amicus and I appoint Chris G. Paliare of Paliare Roland Rosenberg Rothstein LLP as amicus to assist the court with respect to the reasonableness of class counsel’s fees and disbursements.
[8] I direct counsel to serve all material for the motion, including facta and books of authorities, on Mr. Paliare at least 30 days prior to the hearing of the motion to approve the settlement and class counsel’s fees and disbursements, and I direct Mr. Paliare to serve counsel for the plaintiff and the defendant with his factum and book of authorities at least five days before the hearing.
[9] There will obviously be an issue as to who pays the reasonable fees and disbursements of the amicus, and I will entertain submissions in that regard at the hearing. I request that Mr. Paliare furnish a bill of costs to counsel prior to the hearing, and I request that he bring it to the hearing.