Court File and Parties

COURT FILE NO.: CV- 22-00675855-00CP DATE: 20231024 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BURFORD LAW PROFESSIONAL CORPORATION and TAIS DAVIS, Plaintiffs – and – DYE & DURHAM LIMITED and DORPROCESS LP, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Caleb Edwards, for the Plaintiffs David Sischy, for the Defendants

HEARD: October 24, 2023

Settlement Approval

[1] The parties to this proposed class action have reached a settlement. The agreement entails the case being dismissed on a without costs basis.

[2] The certification hearing was adjourned midstream earlier this year. At that time, Plaintiffs’ counsel indicated that they wanted to consider revising the claim in a way which would potentially increase its chances of success.

[3] As Plaintiffs’ counsel requested, the motion was adjourned before reaching any conclusion. Subsequently, the Plaintiffs and their counsel determined that it was not feasible to revise the claim in the way that had been contemplated. Plaintiffs apparently then arrived at the decision that they were no longer interested in pursuing the case.

[4] At a case conference on August 1, 2023, I indicated that there should be an open court hearing for approval of the settlement. Section 27.1(1) of the Class Proceedings Act, 1992, SO 1992 c. 6 provides that class action settlements require court approval, although section 27.1(4) makes it clear that a settlement effects the entire class only if the action has already been certified. That leaves it somewhat ambiguous as to whether a pre-certification settlement needs to be approved.

[5] In my view, however, it is prudent in this case for the court approval process to take place given the unusual timing of the proposed settlement – i.e. during a mid-certification motion adjournment. That way the putative class members will have been given notice of the proposed settlement and the hearing, and will be invited to attend the hearing and voice any concerns they may have.

[6] I am advised by Plaintiffs’ counsel that the proposed settlement agreement and notice of this hearing has been posted on the website they created which is dedicated to this case. I have also been advised that they have made efforts to reach out directly to anyone who had up until now expressed interest in the class action. They have also been in touch with the Federation of Ontario Law Associations and asked them to publicize the matter to their members. I am advised that as of today, Plaintiffs’ counsel have not heard any expression of concern about the settlement from any potential class member.

[7] In any case, it is my view that the settlement does not prejudice the putative class members. This matter was commenced well within the applicable limitation period and, of course, the limitation period has been tolled since its commencement. Therefore, anyone interested in starting their own action on the same grounds as the present one is still in a position to do so.

[8] Moreover, the settlement is in the best interests of the putative class. Plaintiffs’ counsel were correct in their mid-motion calculation that, as formulated, their chances of success were slim. In fact, a suggestion to that effect was contained in my adjournment endorsement, Burford Law Professional Corp. v. Dye & Durham Limited, 2023 ONSC 2034, at para 7:

[During the hearing] I expressed the concern that those who really suffered the loss seemed to be the class members’ clients rather than the class members themselves; in fact, a featured piece of evidence contained in the Plaintiffs’ record is the Globe and Mail’s coverage of the higher transactional costs faced by home buyers. This focus suggested that there may be a question of whether the actual class members have a sufficient stake in the litigation at all.

[9] Had the certification motion continued to a conclusion, there is a good chance it would have ended with a dismissal of the motion and a costs award against the Plaintiffs. And while Plaintiffs’ counsel has forthrightly advised me that their retainer agreement would require counsel to bear those costs rather than the Plaintiffs themselves, that is still a practical and legitimate consideration in weighing the merits of the proposed settlement.

[10] Plaintiffs’ counsel are under a professional obligation to vigorously advocate their clients’ cause. However, they are not required to take any and all imprudent risks on their clients’ behalf, including the risk of a substantial costs award in circumstances where it is very unlikely that their clients will succeed. If a cost/benefit analysis of accepting or rejecting a settlement proposal tilts severely toward cost and very little toward benefit, counsel are entitled to recommend accepting the settlement and Plaintiffs are well advised to accept that recommendation.

[11] With my approval of the settlement and dismissal of the claim, Plaintiffs’ counsel are to again notify all persons or firms who registered with the class counsel database as well as the Federation of Ontario Law Associations. I observe that there may also be some press coverage of the settlement and dismissal, given that there was press coverage of the claim when it was commenced. All of that should suffice to bring attention to these developments in the event that there is any member of the putative class who wishes to start their own action.

[12] The settlement is hereby approved. I would ask Plaintiffs’ counsel to send my assistant a copy of their draft Order in Word format.

Date: October 24, 2023 Morgan J.