COURT FILE NO.: CV-17-570771-00CP
DATE: 2019/12/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jullian Jordea Reddock
Plaintiff
– and –
Attorney General of Canada
Defendant
H. Michael Rosenberg and James Sayce for the Plaintiff
Proceeding under the Class Proceedings Act, 1992
HEARD: December 5, 2019
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] Pursuant to the Class Proceedings Act, 1992,[^1] Jullian Jordea Reddock sued the Attorney General of Canada, which is to say that he sued the Federal Government of Canada. The Reddock Action arises out of the use of administrative segregation in Canada’s penitentiaries, which are administered by the Correctional Service of Canada, sometimes referred to as “CSC”. Because of the use of administrative segregation, Mr. Reddock alleged that Canada breached the inmates’ rights under the Canadian Charter of Rights and Freedoms, [^2] including their rights under s. 7 (life, liberty, and security of the person), s. 9 (arbitrary detention), s. 11 (h) (double jeopardy) and s. 12 (cruel and unusual treatment). Mr. Reddock also advanced a systemic negligence claim against Canada.
[2] Mr. Reddock moved for a summary judgment of the common issues in his action. After a five-day hearing, his motion was successful. The Class Members were awarded aggregate damages of $20 million and they have the right to bring individual claims for further compensation.[^3] They also recovered $1,120,797 for pre-judgment interest.
[3] Based on a contingency fee retainer agreement that provides for a 33% share of the judgment, Class Counsel asks the court to approve the contingency fee agreement, and it requests approval of a Counsel fee of $7,033,225.40, plus HST of $914,319.30 for a total fee of $7,947,544.70.
[4] Class Counsel also requests an honourarium for Mr. Reddock of $15,000.
[5] Finally, Class Counsel requests the approval of the statutory levy payable to the Law Foundation of Ontario pursuant to s. 10 of Regulation 771/92 of the Law Society Act. The amount of the statutory levy is $1,395,097.68.
[6] For the reasons set out below, I grant Class Counsel’s requests.
B. Facts
[7] Class Counsel are a consortium of Koskie, Minsky LLP and McCarthy Tetrault LLP.
[8] In February 2017, Jullian Jordea Reddock retained Koskie, Minsky LLP to initiate and prosecute this class action against the Government of Canada. Mr. Reddock signed a contingency fee agreement that provided for a 33% contingency fee. The Retainer Agreement provided, among other things, as follows:
i. Except for any Costs paid to Class Counsel as provided in paragraph 9 below, Class Counsel shall be paid its fees upon achieving Success in the action, whether by obtaining judgment on any of the common or individual issues in favour of some or all class members or by obtaining a settlement that benefits one or more class members. The fees shall be paid by a lump sum payment to the extent possible, or (if a lump sum payment is not possible) by periodic payments out of the proceeds of any judgment, order or settlement awarding or providing monetary relief, damages, interest or costs to the Class or any Class Member.
ii. In the event of Success, Class Counsel shall be paid an amount equal to any disbursements not already paid to them by the Defendants as Costs, plus applicable taxes, plus interest thereon in accordance with section 33(7)(c) of the CPA, plus the greater of:
(b) If the Action is settled after a successful trial of the Common Issues, determined by judgment after the trial, or settled after a successful trial of the Common Issues with individual issues to be determined on an individual basis, thirty-three and one third percent (33 1/3 %) of the Recovery, less the fee portion of any costs already paid to Class Counsel, plus HST
[9] Early in the proceeding, Class Counsel applied for funding and an adverse cost indemnity from the Class Proceedings Fund. The Fund agreed to support the litigation.
[10] On March 3, 2017, the Statement of Claim was issued.
[11] On January 19, 2018, Canada delivered its Statement of Defence.
[12] On June 4, 2018, Mr. Reddock delivered an Amended Statement of Claim.
[13] On June 21, 2018, a Fresh as Further Amended Statement of Claim was filed. Further amendments to the pleading were made as the case progressed.
[14] On February 4, 2019, Canada delivered an Amended Statement of Defence.
[15] Mr. Reddock brought a combined motion for certification and summary judgment.
[16] Canada initially opposed certification and planned to bring a motion to strike the Plaintiff’s pleadings. However, it consented to certification of the Plaintiff’s Charter claims, and Mr. Reddock reserved the right to seek certification of his systemic negligence claim on a contested basis. Canada would eventually consent to the certification of the systemic negligence claim.
[17] The scheduled summary judgment motion was adjourned, and although the parties engaged in settlement discussions for six months, they were unable to reach a resolution. The parties met for four mediation sessions, June 5, 2018 in Toronto, July 19 in Montreal, September 7, 2018, and November 16, 2018 in Toronto, and then the litigation resumed.
[18] Shortly before the hearing of the motion for summary judgment, as noted above, Canada consented to the certification of the negligence claim, avoiding a contested certification motion on this claim.
[19] The summary judgment motion was heard over five (5) days in July 2019. As noted above, Mr. Reddock was successful. I found Class-wide procedural breaches of section 7 and section 12 of the Charter, and systemic breaches of duties owed to Class Members. I awarded $20 million in aggregate damages, including $9,000,000 as compensation for base-level systemic negligence and compensatory Charter damages and $11,000,000 vindication and deterrence Charter damages. I directed individual issues trials to determine additional compensatory damages for each Class Member.
[20] On November 8, 2019, pre-judgment interest on the $9,000,000 in compensatory damages for systemic negligence was awarded at a rate of five percent, in the amount of $1,120,797.
[21] I awarded Mr. Reddock $1,122,590.33, all inclusive, as the costs for the summary judgment motion.
[22] Due to an addition error in the bill of costs, $48,169 in disbursements were not included in the disbursements claimed by the Mr. Reddock. To avoid having the class to subsidize the error, Class Counsel is willing to reduce its disbursement reimbursement request by $48,169.
[23] My decision is under appeal and in the meantime, some preliminary steps are being taken to develop a protocol for the individual issues phase of the class proceeding. The appeal is scheduled to be argued on January 7-8, 2020 with the potential for leave applications to the Supreme Court of Canada.
[24] Class Counsel estimates that they will need to devote time with a value of approximately $400,000-$500,000 during the post-judgment phase to argue appeals and motions and to implement notice and to communicate with Class Members.
[25] The counsel fee of $7,033,225.40 for which approval is sought is 33.3% of $21,120,797.
[26] In this case, Class Counsel's current time value, plus anticipated future time value, places the multiplier for this counsel fee at approximately 3.23.
[27] Mr. Reddock supports the quantum and percentage of Class Counsel's fee request.
[28] Class Counsel devoted 3353.3 hours of lawyer and student time to this action from commencement to November 27, 2019. The chart below breaks out the hours and value of time for the various steps in the action.
Time and Value of time by step in the proceeding
| Step in Proceeding | Hours | Value of Time |
|---|---|---|
| Claims Investigation and Pleadings | 139.7 | $75,492.50 |
| Class Proceeding Fund Application | 45.8 | $24,600.50 |
| Certification Motion | 373.9 | $199,241.00 |
| Notice to Class | 19.4 | $12,626.00 |
| Case Management Conference | 41.1 | $24,145.00 |
| Expert Reports | 146.2 | $73,527.50 |
| Cross-Examination | 439.7 | $277,888.50 |
| Drafting of Facta | 508.1 | $287,646.50 |
| Settlement Discussions | 196.5 | $134,367.50 |
| Preparation for Summary Judgment Motion | 421.6 | $258,818.00 |
| Attending Summary Judgment Motion | 213.6 | $122,607.50 |
| Appeal of Summary Judgment Motion | 104.2 | $60,685.50 |
| Distribution Protocol | 132.3 | $74,710.50 |
| Communication with Class Members | 571.2 | $170,557.00 |
| SUB-TOTAL | $1,796,913.50 | |
| HST | $233,598.76 | |
| TOTAL | 3353.3 | $2,030,512.26 |
C. Fee Approval
[29] 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 lawyer in conducting the litigation and the degree of success or result achieved.[^4]
[30] 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; and (j) the opportunity cost to class counsel in the expenditure of time in pursuit of the litigation and settlement.[^5]
[31] The court must consider all the factors and then ask, as a matter of judgment, whether the fee fixed by the agreement is reasonable and maintains the integrity of the profession.[^6]
[32] In my opinion, having regard to the various factors used to determine whether to approve Class Counsel’s fee request, Class Counsel’s fee request in the immediate case should be approved. Class Counsel brought Mr. Reddock’s extraordinary high-risk action to a very substantial and significant outcome. Class Counsel more than earned their fee and it should be and is approved.
D. Honorarium
[33] Where a representative plaintiff can show that he or she rendered active and necessary assistance in the preparation or presentation of the case and that such assistance resulted in monetary success for the class, the representative plaintiff may be compensated by an honorarium.[^7] However, the court should only rarely approve this award of compensation to the representative plaintiff.[^8]
[34] Compensation for a representative plaintiff may only be awarded if he or she has made an exceptional contribution that has resulted in success for the class.[^9]
[35] Compensation to the representative plaintiff should not be routine, and an honorarium should be awarded only in exceptional cases. In determining whether the circumstances are exceptional, the court may consider among other things: (a) active involvement in the initiation of the litigation and retainer of counsel; (b) exposure to a real risk of costs; (c) significant personal hardship or inconvenience in connection with the prosecution of the litigation; (d) time spent and activities undertaken in advancing the litigation; (e) communication and interaction with other Class Members; and (f) participation at various stages in the litigation, including discovery, settlement negotiations and trial.[^10]
[36] Class Counsel seeks approval of an honorarium in the amount of $15,000.00 for Mr. Reddock.
[37] I agree that this honorarium is appropriate given the extraordinary contribution made by Mr. Reddock and given the bravery of his leadership in this case against Canada.
E. Conclusion
[38] For the above reasons, I grant Class Counsel’s requests.
Perell, J.
Released: December 5, 2019
Reddock v. Canada (Attorney General), 2019 ONSC 7090
COURT FILE NO.: CV-17-570771CP
DATE: 2019/12/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jullian Jordea Reddock
Plaintiff
– and –
Attorney General of Canada
Defendant
REASONS FOR DECISION
PERELL J.
Released: December 5, 2019
[^1]: S.O. 1992, c.6.
[^2]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[^3]: Reddock v. Canada (Attorney General), 2019 ONSC 5053.
[^4]: Fischer v. I.G. Investment Management Ltd., [2010] O.J. No. 5649 at para. 25 (S.C.J.); Smith v. National Money Mart, 2010 ONSC 1334 at paras. 19-20, varied 2011 ONCA 233; Parsons v. Canadian Red Cross Society, 2000 CanLII 22386 (ON SC), [2000] O.J. No. 2374 at para. 13 (S.C.J.).
[^5]: Fischer v. I.G. Investment Management Ltd., [2010] O.J. No. 5649 at para. 28 (S.C.J.); Smith v. National Money Mart, 2010 ONSC 1334, varied 2011 ONCA 233.
[^6]: Commonwealth Investors Syndicate Ltd. v. Laxton, [1994] B.C.J. No. 1690 at para. 47 (B.C.C.A.).
[^7]: Windisman v. Toronto College Park Ltd., [1996] O.J. No. 2897 at para. 28 (Gen. Div.).
[^8]: Sutherland v. Boots Pharmaceutical plc, supra; Bellaire v. Daya, [2007] O.J. No. 4819 at para. 71. (S.C.J.); McCarthy v. Canadian Red Cross Society, [2007] O.J. No. 2314 (S.C.J.).
[^9]: Toronto Community Housing Corp. v. ThyssenKrupp Elevator (Canada) Ltd., 2012 ONSC 6626; Markson v. MBNA Canada Bank, 2012 ONSC 5891 at paras. 55-71.
[^10]: Robinson v. Rochester Financial Ltd., 2012 ONSC 911 at paras. 26-44.```