REASONS FOR DECISION ON FEE APPROVAL

R. SMITH J.

Honourarium

[1] I approve the payment of an honourarium of $5000 to the representative plaintiffs as I am satisfied that they both meaningfully contributed to the class member access to justice. They also meet the criteria established by (Strathy J. as he then was) in Robinson v. Rochester Financial Ltd., 2012 ONSC 911, including their active involvement in the initiation of litigation, the retainer of counsel and they spent a substantial amount of time to advance the litigation. They did not assume any financial risk as an indemnification agreement was provided by class counsel.

Counsel Fees

[2] Counsel seek approval of their fees which are calculated at 25% of the amount recovered as agreed in their retainer agreements. This amounts to $3,029,915.75 in fees on the BMO fixed settlement funds, 5% or $159,469.25 is proposed for Quebec class Counsel subject to approval, and $442,356.25 for the CIBC fixed settlement amounts, plus $224,507.24 in disbursements.

[3] In Mancinelli v. Royal Bank of Canada the court set out the principles to be applied when considering the approval of counsel fees as follows:

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. 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 funds 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.

[4] Class counsel’s docketed time on this file is approximately $1.4 million to date. The fees sought amount to a multiplier of 2.6 which is in the mid range for multipliers in the class proceedings.

[5] I find that the multiplier is appropriate given the risk assumed by class counsel as they accepted responsibility for all costs to move the action forward, did not apply to the Class Proceedings Fund or seek third-party funding, which avoided the payment of a percentage of the settlement. The case also had certification risk and merits risk, and class counsel assumed the risk of an adverse costs award by agreeing to indemnify the representative plaintiffs.

Disposition of Fee Approval Motion

[6] For the above reasons the fees and disbursements sought by class counsel are approved.

Released: April 20, 2021

COURT FILE NO.: CV-18-76745-00CP

DATE: 20210420

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MELISSA MALLETTE

Plaintiff

– and –

BANK OF MONTREAL

Defendant

REASONS FOR JUDGMENT

R. Smith J.

Released: April 20, 2021

Mallette v. Bank of Montreal, 2021 ONSC 2922

Case Summary

REASONS FOR DECISION ON FEE APPROVAL

R. SMITH J.

Honourarium

Counsel Fees

Disposition of Fee Approval Motion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues