Court File and Parties

COURT FILE NO.: (McBain v. Hyundai Auto Canada Corp.) CV-19-627147-00CP (Asselstine v. Kia Canada Inc.) CV-19-627149-00CP

DATE: 20211026

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KEITH McBAIN, Plaintiff AND: HYUNDAI AUTO CANADA CORP, HYUNDAI MOTOR COMPANY, LTD, HYUNDAI MOTOR AMERICA, INC, and HYUNDAI MOTOR MANUFACTURING ALABAMA, LLC, Defendants

AND BETWEEN: CHANTAL ASSELSTINE, Plaintiff AND: KIA CANADA INC., KIA MOTORS CORPORATION, KIA MOTORS AMERICA, INC, KIA MOTORS MANUFACTURING GEORGIA, INC, HYUNDAI MOTOR COMPANY, LTD, HYUNDAI MOTOR AMERICA, INC, and HYUNDAI MOTOR MANUFACTURING ALABAMA, LLC, Defendants

BEFORE: Justice Glustein

COUNSEL: Matthew D. Baer, Chelsea Smith, and Jonathan Bradford, for the Plaintiffs in both actions Ilan Ishai & Ashley Paterson, for the Defendants in both actions

HEARD: October 25, 2021

REASONS FOR DECISION – APPROVAL OF RETAINER AGREEMENT AND FEES

[1] By reasons dated March 9, 2021, released concurrently with reasons of Justice Pierre-C. Gagnon of the Superior Court of Québec in the Québec Action,[^1] the court approved the Settlement Agreement in the Ontario Actions.

[2] In the present motion under ss. 32 and 33 of the CPA, the plaintiffs in the Ontario Actions ask the court for (i) an order approving the retainer agreements entered into with McBain and Asselstine, (ii) an order approving Class Counsel’s legal fees, disbursements, and applicable taxes, in the amount agreed to by the parties, and (iii) an order that the defendants pay Class Counsel’s legal fees, disbursements, and applicable taxes.

[3] The fees were agreed to by the parties, following negotiations and a mediated settlement.

[4] As at the hearing for settlement approval, this motion for approval of the retainer agreements and fees was heard by videoconference, jointly with the hearing conducted by Justice. Gagnon in the Québec Action.

[5] For the reasons that follow, I approve the retainer agreements and the fees sought. I release a single set of reasons for the motions in both of the Ontario Actions.

[6] Further, I have reviewed the reasons of Justice Gagnon in the Québec Action, which are released concurrently with these reasons.

Approval of the retainer agreements

[7] The retainer agreements comply with the requirements under s. 32(1) of the CPA.

[8] Pursuant to s 32(1) of the CPA, an agreement respecting fees and disbursements between class counsel and a representative plaintiff shall be in writing and shall:

(a) state the terms under which fees and disbursements shall be paid,

(b) give an estimate of the expected fee, whether contingent on success in the class proceeding or not, and,

(c) state the method by which payment is to be made, whether by lump sum, salary or otherwise.

[9] The retainer agreements with Asselstine and McBain meet the requirements of ss. 32 and 33 of the CPA: they state the terms under which the fees and disbursements shall be paid, provide an estimate of the expected fee, and state the method of payment.

[10] The representative plaintiffs fully understand and accept the terms of the retainer agreements.

[11] Consequently, I approve the retainer agreements in the Ontario Actions.

Fee approval

[12] In the present case, Class Counsel seeks approval of a collective fee for all counsel in the national consortium (i.e. for the Québec, Ontario, Saskatchewan, and British Columbia Actions).. The negotiated $2 million amount includes a Canada-wide lodestar of $1,567,943.82, a multiplier of approximately 1.1, taxes of 13% on the collective lodestar and multiplier in the amount of $226,480.77, and disbursements (inclusive of tax), in the amount of $33,654.79 ($10,492.09 of which are related only to the Québec Action).

[13] In the fee approval motion in the Québec Action, Class Counsel are only seeking approval of the $10,492.09 in disbursements. No separate fee approval is sought with respect to fees incurred by Québec counsel in that action, as that amount is already included in the collective amount sought before this court for all Actions.

[14] Consequently, the amount for disbursements in the Québec Action has been deducted from the amount sought for approval in the motions before this court, and thus (i) Class Counsel in the Ontario Actions seek approval by this court of legal fees of $1,989,507.91, inclusive of taxes and disbursements, for the work and expenses of Class Counsel to litigate this matter across Canada; and (ii) Class Counsel in the Québec Action seek approval before Justice Gagnon of $10,492.09 in disbursements, for a collective amount of $2 million.

[15] I find that the amount sought is reasonable. I rely on the following:

(i) The multiplier of 1.1 sought on collective lodestar fees of $1,567,943.82, plus disbursements and taxes, is at the low end of a range applied in the case law (generally a multiplier of between one to four);

(ii) The Settlement Agreement provided for benefits comparable with the terms of settlement reached in similar US litigation, providing Settlement Class Members with all of the results they could have realistically and reasonably expected to achieve through litigating the action;

(iii) Given the US settlement, Class Counsel faced lower risk than if the matter had been fully contested. Nevertheless, Class Counsel was required, on behalf of Settlement Class Members, to fully and properly review the file and prepare for settlement discussions to ensure that the interests of Settlement Class Members were protected;

(iv) Further, there remained risk as there was no guarantee that there would be a settlement in Canada, which raised a risk of protracted litigation or settlement negotiations;

(v) Consequently, Class Counsel reasonably incurred time for significant legal and factual research into the circumstances that gave rise to the cause of action, including conducting extensive documentary discovery (more than 40,000 files), reviewing the materials and settlement in the US litigation, and preparing for court proceedings; and

(vi) The collective amount for fees was negotiated between the parties, and then mediated with the assistance of a highly experienced class action judge.

[16] For the above reasons, I approve the requested legal fees of $1,989,507.91, inclusive of taxes and disbursements, for the work and expenses of Class Counsel to litigate this matter across Canada, with concurrent reasons of Justice Gagnon who approved the amount of $10,492.09 sought for disbursements in the Québec Action.

[17] Counsel provided the court with draft orders which I have signed today.

Glustein J.

Date: October 26, 2021

COURT FILE NO.: (McBain v. Hyundai Auto Canada Corp.) CV-19-627147-00CP (Asselstine v. Kia Canada Inc.) CV-19-627149-00CP

DATE: 20211026

ONTARIO SUPERIOR COURT OF JUSTICE

KEITH McBAIN Plaintiff

AND: HYUNDAI AUTO CANADA CORP, HYUNDAI MOTOR COMPANY, LTD, HYUNDAI MOTOR AMERICA, INC, and HYUNDAI MOTOR MANUFACTURING ALABAMA, LLC Defendants

AND BETWEEN: CHANTAL ASSELSTINE Plaintiff

AND: KIA CANADA INC., KIA MOTORS CORPORATION, KIA MOTORS AMERICA, INC, KIA MOTORS MANUFACTURING GEORGIA, INC, HYUNDAI MOTOR COMPANY, LTD, HYUNDAI MOTOR AMERICA, INC, and HYUNDAI MOTOR MANUFACTURING ALABAMA, LLC Defendants

REASONS FOR DECISION– APPROVAL OF RETAINER AGREEMENT AND FEES

Glustein J.

Released: October 26, 2021

[^1]: All defined terms are as in my reasons dated March 9, 2021.