COURT FILE NO.: CV-15-536174
DATE: 2020/07/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, LUIGI CARROZZI, MANUEL BASTOS and JACK OLIVEIRA in their capacity as THE TRUSTEES OF THE LABOURERS’ PENSION FUND OF CENTRAL AND EASTERN CANADA, and CHRISTOPHER STAINES
Plaintiffs
– and –
ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BANK OF AMERICA CANADA, BANK OF AMERICA NATIONAL ASSOCIATION, THE BANK OF TOKYO MITSUBISHI UFJ LTD., BANK OF TOKYO-MITSUBISHI UFJ (CANADA), BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., BARCLAYS CAPITAL CANADA INC., BNP PARIBAS GROUP, BNP PARIBAS NORTH AMERICA INC., BNP PARIBAS (CANADA), BNP PARIBAS, CITIGROUP, INC., CITIBANK, N.A., CITIBANK CANADA, CITIGROUP GLOBAL MARKETS CANADA INC., CREDIT SUISSE GROUP AG, CREDIT SUISSE SECURITIES (USA) LLC, CREDIT SUISSE AG, CREDIT SUISSE SECURITIES (CANADA), INC., DEUTSCHE BANK AG, THE GOLDMAN SACHS GROUP, INC., GOLDMAN, SACHS & CO., GOLDMAN SACHS CANADA INC., HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC BANK USA, N.A., HSBC BANK CANADA, JPMORGAN CHASE & CO., J.P.MORGAN BANK CANADA, J.P.MORGAN CANADA, JPMORGAN CHASE BANK NATIONAL ASSOCIATION, MORGAN STANLEY, MORGAN STANLEY CANADA LIMITED, ROYAL BANK OF SCOTLAND GROUP PLC, RBS SECURITIES, INC., ROYAL BANK OF SCOTLAND N.V., ROYAL BANK OF SCOTLAND PLC, SOCIÉTÉ GÉNÉRALE S.A., SOCIÉTÉ GÉNÉRALE (CANADA), SOCIÉTÉ GÉNÉRALE, STANDARD CHARTERED PLC, UBS AG, UBS SECURITIES LLC and UBS BANK (CANADA)
Defendants
Daniel Bach, Louis Sokolov and Nathalie Gondek for the Plaintiffs
Lara Jackson and Christopher Horkins for the Defendants, Bank of Montreal, BMO Financial Corp., BMO Harris Bank N.A. and BMO Capital Markets Limited
Donald Houston, for the Defendants, Credit Suisse Group AG, Credit Suisse Securities (USA) LLC, Credit Suisse AG and Credit Suisse Securities (Canada), Inc.
Pierre Gemson and Caitlin Sainsbury for the Defendant Deutche Bank AG
Robert Carson for the Defendants Royal Bank of Canada and RBC Capital Markets LLC
Steve Aylward for the Defendants Toronto Dominion Bank, TD Bank, N.A., TD Group US Holdings, LLC, TD Bank USA, N.A. and TD Securities Limited
Proceeding under the Class Proceedings Act, 1992
HEARD: July 16. 2020
PERELL, J.
REASONS FOR DECISION
[1] In this action under the Class Proceedings Act, 1992,[^1] the Plaintiffs, Joseph S. Mancinelli, Carmen Principato, Douglas Serroul, Luigi Carrozzi, Manuel Bastos, and Jack Oliveira, in their capacity as The Trustees of the Labourers’ Pension Fund of Central and Eastern Canada (“Labourers”), and Christopher Staines, sued eighteen groups of bank financial institutions. Fourteen of the groups of Defendant banks entered into settlement agreement. After a contested certification motion, the action was certified against four groups of Defendants.
[2] The latest of the settling Defendants is the Bank of Montreal (“BMO”). BMO is Bank of Montreal, BMO Financial Corp., BMO Harris Bank N.A. and BMO Capital Markets Limited. I certified the action against BMO for settlement purposes.[^2] I approved the $250,000 settlement agreement with BMO.[^3] My settlement approval decision sets out the background facts.
[3] Class Counsel moves for approval of an interim fee award and disbursements based on the BMO Settlement. It requests payment of $196,502.55 comprised of fees of $62,500.00, being 25% of this settlement and the percentage specified in the retainer agreements and applicable taxes, and disbursements of $119,800.83 and taxes of $14,201.72.
[4] The last interim fee award in this class action was approved on July 5, 2018, in the amount of $7,000,000 and applicable taxes, as well as disbursements of $120,244.66 and applicable taxes. The period for which fees and disbursements were calculated for that fee award was June 1, 2018. I ordered that $10,000,000 be held back from the distribution fund of the settlements paid to that time (approximately $107,000,000) for future fees and disbursements. Class Counsel will be making a further request for fees that were held back. That application will be made later this year. The current fee request relates solely to the BMO settlement.
[5] Class Counsel entered into retainer agreements with the Representative Plaintiffs, which were approved in the context of the earlier fee approval orders. The agreements provide for a sliding scale of payment depending on the stage of the action in which a settlement is obtained. Under the retainer agreements, settlements obtained prior to certification provide for a counsel fee of 25% plus applicable taxes and disbursements.
[6] A summary of the docketed time by firm since June 1, 2018 (after the period that was the subject of the last fee approval materials) is found in the table below:
| Law Firm | Total Docketed Hours (since June 1, 2018) | Total Time Value (without applicable taxes) |
|---|---|---|
| Sotos LLP | 1269.2 | $854,083.50 |
| Koskie Minsky LLP | 580.9 | $411,552.00 |
| Siskinds LLP | 1531.8 | $727,602.00 |
| Camp Fiorante Matthews Mogerman | 450.0 | $249,199.50 |
| TOTAL | 3,832 | $2,242,437.00 |
[7] The following chart outlines the disbursements incurred by Class Counsel between the last disbursement approval date of June 1, 2018, and June 18, 2020, including applicable taxes. These disbursements do not include expert fees and distribution-related expenses which were ordered to be taken from the hold-back fund:
| Item | Tax Note | TOTAL |
|---|---|---|
| Court Registry/Process Server | GST Exempt | $2,439.00 |
| Long Distance/Telephone | $1,071.07 | |
| Photocopy/Printing | PST Applicable | $10,435.12 |
| Travel/Meals | $13,681.93 | |
| Courier/Postage | $505.35 | |
| eDiscovery | $25,454.46 | |
| Document Storage | $5,668.19 | |
| Bank Charges | $15.00 | |
| Miscellaneous (Web Domain) | $88.50 | |
| Outside Professionals | $10,892.53 | |
| Outside Professionals (Siskinds Desmeules) | $37,459.77 | |
| Research/Pacer | $3,769.16 | |
| Transcripts | $8,320.75 | |
| Sub-Totals | $119,800.83 | |
| HST | $14,201.72 | |
| Totals | $134,002.55 |
[8] The Representative Plaintiffs recommend the payment.
[9] 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]
[10] 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]
[11] 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]
[12] 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.
[13] In the circumstances of the Covid-19 emergency, these Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.
[14] The parties may submit formal orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release.
Perell, J. - Released: July 17, 2020
COURT FILE NO.: CV-15-536174
DATE: 2020/07/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, LUIGI CARROZZI, MANUEL BASTOS and JACK OLIVEIRA in their capacity as THE TRUSTEES OF THE LABOURERS’ PENSION FUND OF CENTRAL AND EASTERN CANADA, and CHRISTOPHER STAINES
Plaintiffs
– and –
ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BANK OF AMERICA CANADA, BANK OF AMERICA NATIONAL ASSOCIATION, THE BANK OF TOKYO MITSUBISHI UFJ LTD., BANK OF TOKYO-MITSUBISHI UFJ (CANADA), BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., BARCLAYS CAPITAL CANADA INC., BNP PARIBAS GROUP, BNP PARIBAS NORTH AMERICA INC., BNP PARIBAS (CANADA), BNP PARIBAS, CITIGROUP, INC., CITIBANK, N.A., CITIBANK CANADA, CITIGROUP GLOBAL MARKETS CANADA INC., CREDIT SUISSE GROUP AG, CREDIT SUISSE SECURITIES (USA) LLC, CREDIT SUISSE AG, CREDIT SUISSE SECURITIES (CANADA), INC., DEUTSCHE BANK AG, THE GOLDMAN SACHS GROUP, INC., GOLDMAN, SACHS & CO., GOLDMAN SACHS CANADA INC., HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC BANK USA, N.A., HSBC BANK CANADA, JPMORGAN CHASE & CO., J.P.MORGAN BANK CANADA, J.P.MORGAN CANADA, JPMORGAN CHASE BANK NATIONAL ASSOCIATION, MORGAN STANLEY, MORGAN STANLEY CANADA LIMITED, ROYAL BANK OF SCOTLAND GROUP PLC, RBS SECURITIES, INC., ROYAL BANK OF SCOTLAND N.V., ROYAL BANK OF SCOTLAND PLC, SOCIÉTÉ GÉNÉRALE S.A., SOCIÉTÉ GÉNÉRALE (CANADA), SOCIÉTÉ GÉNÉRALE, STANDARD CHARTERED PLC, UBS AG, UBS SECURITIES LLC and UBS BANK (CANADA)
Defendants
REASONS FOR DECISION
PERELL J.
Released: July 17, 2020
[^1]: S.O. 1992, c. 6. [^2]: Mancinelli v. Royal Bank of Canada, 2020 ONSC 3468. [^3]: Mancinelli v. Royal Bank of Canada, 2020 ONSC 4328 [^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.).