COURT FILE NO.: CV-18-591719-00CP
DATE: 20210708
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CONREY FRANCIS
Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendant
James Sayce and Nathalie Gondek for the Plaintiff
Victoria Yankou and Calie Adamson for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: July 8, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This is a motion pursuant to the Class Proceedings Act, 1992[^1] for: (a) approval of Class Counsel’s contingency fee agreement; (b) a $7.5 million Class Counsel fee plus HST; (c) the statutory levy of the Class Proceedings Fund of $2,197,773.47 pursuant to s. 10 of Ont. Reg. 771/92 of the Law Society Act[^2]; and (d) a $15,000 honorarium for Conrey Francis, the Representative Plaintiff.
B. Facts
[2] The Class Members were prisoners in correctional institutions of the Defendant Her Majesty the Queen in Right of Ontario (“Ontario”). The Class Members alleged that they were the victims of negligence and contraventions of the Canadian Charter of Rights and Freedoms.[^3]
[3] The Plaintiff, Conrey Francis, was an inmate of the Toronto South Detention Centre. He was placed in administrative segregation. In his action, Mr. Francis alleged that Ontario was negligent and that Ontario breached his and other inmates' rights under sections 7 and 12 of the Charter. Mr. Francis and the Class Members sought common law damages and so-called Charter damages pursuant to section 24 of the Charter.
[4] On December 9, 2016, Mr. Francis commenced his proposed class action when notice to the Crown was served pursuant to the Proceedings Against the Crown Act.[^4]
[5] Class Counsel are Koskie Minsky LLP.
[6] Before commencing his proposed class action, Mr. Francis signed a contingency fee agreement with Class Counsel. For present purposes, the pertinent provisions of the agreement are set out below:
- In the event of Success, Class Counsel shall be paid an amount equal to
(a) any disbursements not already paid to Class Counsel by the Defendant as costs plus applicable taxes and interest thereon in accordance with s. 33(7)(c) of the Act plus
(b) 33% of Recovery, less the fee portion of any costs already paid to Class Counsel, plus HST.
- Except for any Costs paid to Class Counsel as provided in paragraph 13 below, Class Counsel shall be paid its fees, as set out herein, 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.
[7] On April 20, 2017, the Statement of Claim was issued.
[8] In October 2017, Mr. Francis delivered his Motion Record for Certification.
[9] In February 2018, Ontario delivered its Responding Motion Record opposing certification.
[10] In May 2018, Mr. Francis delivered his Reply Motion Record for Certification.
[11] Between May 2018 and August 21, 2018, there were eleven cross-examinations of deponents for the certification motion.
[12] On August 21, 2018, Ontario agreed to certification on consent, and the action was certified as a class proceeding on September 18, 2018.[^5]
[13] On October 4, 2018, an Amended Statement of Claim was filed.
[14] On October 26, 2018, Ontario delivered an Amended Statement of Defence.
[15] Mr. Francis moved for summary judgment and on December 11, 2018, he delivered his Summary Judgment Motion Record. On May 31, 2019, Ontario delivered its Responding Motion Record for the summary judgment motion. In July 2019, Mr. Francis delivered his Reply Motion Record for the summary judgment motion.
[16] On July 31, 2019, Mr. Francis issued a summons for Dr. Hannah-Moffat, Ontario’s Independent Expert on Human Rights and Corrections, appointed by the Lieutenant Governor-in-Council. Dr. Hannah-Moffat was to issue a final report concerning segregation issues in the Ontario correctional system later that year.
[17] Ontario opposed the summons and Mr. Francis brought a motion. I ordered that Dr. Hannah-Moffat’s final report be delivered for filing and use on the summary judgment motion.[^6]
[18] Throughout the summer and into the autumn of 2019, there were twenty-one cross-examinations of witnesses for the summary judgment motion.
[19] The summary judgment motion was argued over four days in January 2020. The evidentiary record was 15,560 pages and 551 pages of facta. There were 9,349 pages of legal authorities.
[20] The summary judgment decision was released on April 20, 2020. Mr. Francis was successful.[^7] Some of the major holdings on the summary judgment were as follows:
• In addition to individual cases where an inmate has been denied due process and his or her Charter rights were contravened, Ontario’s review system for placements in administrative segregation contravenes the Class Members’ rights under section 7 of the Charter.
• Ontario’s placing of a Class Member with a serious mental illness (SMI Inmates) in administrative segregation for any period of time contravenes the Class Member’s rights under sections 7 and 12 of the Charter.
• Ontario’s placing of a Class Member in administrative segregation for more than fifteen days contravenes the Class Member’s rights under sections 7 and 12 of the Charter.
• Ontario’s placing of a Class Member with serious mental illness in administrative segregation (SMI Inmates) for any period of time is negligent.
• Ontario’s placing of a Class Member (Prolonged Inmates) in administrative segregation for more than fifteen days is negligent.
• Ontario is liable for the negligence of its civil servants, and Ontario is not protected by Crown immunity. In the circumstance of this case, Ontario does not enjoy Crown immunity under the Proceedings Against the Crown Act,[^8] or pursuant to the Crown Liability and Proceedings Act, 2019[^9] for the negligence of its civil servants.
• A placement in administrative segregation of a Class Member with a serious mental illness (SMI Inmates) causes a minimum level of compensable harm to him or her. Additional compensable harm may be suffered by the Class Member depending on his or her idiosyncratic personality. Some inmates are more resilient than others, but all placements in administrative segregation of an SMI Inmate causes compensable harm.
• A placement in administrative segregation for more than fifteen days causes a minimum level of compensable harm to a Class Member (Prolonged Inmates). Additional compensable harm may be suffered by the Class Member depending on his or her idiosyncratic personality. Some inmates are more resilient than others, but all placements in administrative segregation of a Prolonged Inmate for more than 15 days cause compensable harm.
• The Class Members are entitled to an aggregate damages award of $30.0 million without prejudice to claims for further compensation at individual issues trials.
• The aggregate damages award of $30.0 million is to be distributed less Class Counsel’s fees and expenses pursuant to a distribution plan as the court may approve after a fairness and fee approval hearing.
• The procedure for the individual issues trials shall be determined on motion by court order.
[21] Ontario appealed and the appeal was argued on December 18, 2020. The Court of Appeal dismissed the appeal by decision released on March 31, 2021.[^10] The Court upheld the $30.0 million damages awarded and awarded Mr. Francis costs of $50,000.
[22] Over the course of 4.5 years of hard-fought litigation, Class Counsel docketed 2893.6 hours of time prosecuting the case. The value of the time as of June 23, 2021 is $1,365,377 (before HST). A chart of that time is below:
Hours
Sub-Total
HST
Total
Claims Investigation and Pleadings
118.1
$49,011.50
$6,371.50
$55,383.00
Class Proceeding Fund
24.2
$10,323.50
$1,342.06
$11,665.56
Certification Motion
208.7
$87,909.00
$11,428.17
$99,337.17
Notice to Class
4.4
$1,402.00
$182.26
$1,584.26
Case Management Conference
18.5
$9,802.00
$1,274.26
$11,076.26
Expert Reports
123.5
$64,541.00
$8,390.33
$72,931.33
Cross-Examinations
473.6
$246,596.50
$32,057.55
$278,654.05
Drafting of Facta
434.6
$211,542.50
$27,500.53
$239,043.03
Summary Judgement Motion
248.2
$130,684.00
$16,988.92
$147,672.92
Preparation for and attending SJ Motion
305.1
$148,011.00
$19,241.43
$167,252.43
Appeal of SJ Motion
240.1
$154,684.00
$20,108.92
$174,792.92
Preparation for and attending Appeal Hearing
58.3
$33,006.00
$4,290.78
$37,296.78
Other Motions
171.9
$81,592.00
$10,606.96
$92,198.96
Communication with Class Members
464.4
$136,272.00
$17,715.36
$153,987.36
SUBTOTAL
2893.6
$1,365,377.00
$177,499.01
$1,542,876.01
Disbursements
$11,143.17
$1,444.99
$12,588.16
TOTAL
$1,555,464.17
[23] Because, amongst other things, the distribution protocol and notice to the Class and the protocol for individuals issues trials remains to be determined, the common issues stage of the class proceeding is not completed and Class Counsel will be tasked with: preparing notice documents; implementing the notice plan; answering Class Members’ questions; settling the distribution protocol; settling an individual issues protocol; communicating with third parties such as caregivers, family members, and others who contact Class Counsel about the judgment; and negotiating and/or arguing on the merits of an aggregate damages award for class members in the Chandra v. Ontario action which concerns those segregated in Ontario jails after September 2018 (the end of the class period).
[24] Class Counsel estimates that the outstanding tasks will have a docketed value of $700,000.
[25] Although the Contingency Fee Agreement provides for a contingency fee of 33%, Class Counsel are seeking a contingency fee of 25%. Class Counsel seeks a fee of $7.5 million plus HST. The fee is a 3.57 multiplier of the already expended docketed time plus the estimated $700,000 for additional work to complete the common issues stage of the proceeding.
[26] Mr. Francis received a costs award of approximately $800,000 for legal fees and disbursements.[^11] Class Counsel will give credit for the costs award from the fee taken from the aggregate award.
[27] Mr. Francis approves Class Counsel’s fee request. He believes that the fees sought are fair in all the circumstances especially considering the risks presented, the time expended, and the results achieved.
C. Discussion
[28] 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.[^12] 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.[^13]
[29] These risks of a class proceeding include all of liability risk, recovery risk, and the risk that the action will not be certified as a class proceeding.[^14]
[30] Fair and reasonable compensation must be sufficient to provide a real economic incentive to lawyers to take on a class proceeding and to do it well.[^15]
[31] Accepting that Class Counsel should be rewarded for taking on the risk of achieving access to justice for the Class Members, they are not to be rewarded simply for taking on risk divorced of what they actually achieved.[^16] Placing importance on providing fair and reasonable compensation to Class Counsel and providing incentives to lawyers to undertake class actions does not mean that the court should ignore the other factors that are relevant to the determination of a reasonable fee.[^17] 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.[^18]
[32] In the immediate case, 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 should be approved. Class Counsel brought an extraordinary high-risk action to a very substantial and significant outcome. Class Counsel more than earned their fee and the fee should be and is approved.
[33] Turning to the matter of the honorarium. 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.[^19] However, the court should only rarely approve this award of compensation to the representative plaintiff.[^20] 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.[^21]
[34] 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.[^22]
[35] In the immediate case, Mr. Francis should be awarded an honorarium. He made an extraordinary contribution and should be heralded for the bravery of his leadership and his pursuit for access to justice. He made an extraordinary contribution that was instrumental to the success of the class action.
D. Conclusion
[36] For the above reasons, the motion should be granted. Order to go as requested. I have signed the Order.
Perell, J.
Released: July 8, 2021
COURT FILE NO.: CV-18-591719-00CP
DATE: 20210708
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CONREY FRANCIS
Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendant
REASONS FOR DECISION
PERELL J.
Released: July 8, 2021
[^1]: S.O. 1992, c. 6.
[^2]: R.S.O. 1990, c. L.8.
[^3]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[^4]: R.S.O. 1990, c. P. 27.
[^5]: Francis v. Ontario, 2018 ONSC 5430.
[^6]: Francis v. Ontario, 2019 ONSC 5782.
[^7]: Francis v. Ontario, 2020 ONSC 1644.
[^8]: R.S.O. 1990, c. P.27.
[^9]: S.O. 2019, c. 7, Sched. 7.
[^10]: Francis v. Ontario 2020 ONCA 197.
[^11]: Francis v. Ontario, 2020 ONSC 3989.
[^12]: Smith v. National Money Mart, 2010 ONSC 1334 at paras. 19-20, varied 2011 ONCA 233; Fischer v. I.G. Investment Management Ltd., [2010] O.J. No. 5649 at para. 25 (S.C.J.); Parsons v. Canadian Red Cross Society, 2000 22386 (ON SC), [2000] O.J. No. 2374 at para. 13 (S.C.J.).
[^13]: Smith v. National Money Mart, 2010 ONSC 1334, varied 2011 ONCA 233; Fischer v. I.G. Investment Management Ltd., [2010] O.J. No. 5649 at para. 28 (S.C.J.).
[^14]: Endean v. Canadian Red Cross Society, 2000 BCSC 971 at paras. 28 and 35; Gagne v. Silcorp Ltd., 1998 1584 (ON CA), [1998] O.J. No. 4182 t para. 17 (C.A.).
[^15]:Sayers v. Shaw Cablesystems Ltd., 2011 ONSC 962 at para. 37; Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., [2005] O.J. No. 1117 at paras. 59-61(S.C.J.); Parsons v. Canadian Red Cross Society (2000), 2000 22386 (ON SC), 49 O.R. (3d) 281 (S.C.J.); Gagne v. Silcorp Ltd. (1998), 1998 1584 (ON CA), 41 O.R. (3d) 417 (C.A.).
[^16]: Welsh v. Ontario, 2018 ONSC 3217 at para. 103.
[^17]: Smith Estate v. National Money Mart Co., 2011 ONCA 233 at para. 92.
[^18]: Commonwealth Investors Syndicate Ltd. v. Laxton, [1994] B.C.J. No. 1690 at para. 47 (C.A.).
[^19]: Reddock v. Canada (Attorney General), 2019 ONSC 7090; Brazeau v. Attorney General (Canada) 2019 ONSC 4721; Houle v. St. Jude Medical Inc., 2019 ONSC 4560; Dolmage v. HMQ, 2013 ONSC 6686; Johnston v. The Sheila Morrison Schools, 2013 ONSC 1528 at para. 43; Robinson v. Rochester Financial Ltd., 2012 ONSC 911 at paras. 26–43; Smith Estate v. National Money Mart Co., 2011 ONCA 233 at paras. 133–136; Garland v. Enbridge Gas Distribution Inc., 2006 41291 (ON SC), [2006] O.J. No. 4907 (S.C.J.); Windisman v. Toronto College Park Ltd., [1996] O.J. No. 2897 at para. 28 (Gen. Div.).
[^20]: 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.).
[^21]: Toronto Community Housing Corp. v. ThyssenKrupp Elevator (Canada) Ltd., 2012 ONSC 6626; Markson v. MBNA Canada Bank, 2012 ONSC 5891 at paras. 55-71.
[^22]: Robinson v. Rochester Financial Ltd., 2012 ONSC 911 at paras. 26-44.