Court File and Parties

COURT FILE NO.: CV-21-00670953-00CP

DATE: 20240926

SUPERIOR COURT OF JUSTDICE - ONTARIO

RE: David Trueman

AND:

Rogers Communications Canada Inc. and Rogers Bank

BEFORE: J.T. Akbarali J.

COUNSEL: Margaret L. Wadell and Adam Babiak, for the plaintiff

Linda Plumpton, Shalom Cumbo-Steinmetz and Natasha Williams, for the defendants

HEARD: In writing

Proceeding under the Class Proceedings Act, 1992

ENDORSEMENT

[1] On this motion, the plaintiff seeks approval of a funding agreement pursuant to s. 33.1 of the Class Proceedings Act, 1992, S.O. 1992, c. 6. The defendants do not oppose the motion.

[2] The third-party funding agreement provides that the funder will indemnify the plaintiff for adverse costs awards in this action, up to a proscribed maximum amount. In exchange, the funder will receive a premium to a maximum of 10% of the litigation proceeds awarded to the class, up to a specific maximum amount.

[3] The amount of the premium paid, the prescribed maximum amount of indemnification, and the maximum premium payable to the funder have all been redacted in the motion record publicly filed. I have received a copy of the unredacted agreement. I am satisfied that the redactions are permissible, under the terms of s. 33.1(5) of the CPA, because disclosure of the redacted information may confer a tactical advantage on the defendants.

[4] As with many class actions, the plaintiff’s loss is small compared to the risk of an adverse costs award in the litigation. Accordingly, a third-party funding agreement providing indemnity for adverse costs awards is a practical necessity for the plaintiff to continue to pursue the litigation, and to seek access to justice for the class.

[5] Section 33.1(9) of the CPA sets out the factors the court should consider in approving a funding agreement:

(9) The court shall not approve a third-party funding agreement unless,

(a) the court is satisfied that,

(i) the agreement, including indemnity for costs and amounts payable to the funder under the agreement, is fair and reasonable,

(ii) the agreement will not diminish the rights of the representative plaintiff to instruct the solicitor or control the litigation or otherwise impair the solicitor-client relationship,

(iii) the funder is financially able to satisfy an adverse costs award in the proceeding, to the extent of the indemnity provided under the agreement, and

(iv) any prescribed requirements and other relevant requirements are met; and

(b) it is a term of the agreement that the funder shall be subject to,

(i) the same confidentiality requirements in respect of confidential or privileged information in the proceeding to which the representative plaintiff would be subject, and

(ii) the deemed undertaking rules set out under the rules of court, as if the funder were a party to the proceeding.

[6] I am satisfied that the funding agreement satisfies the factors set out above.

[7] First, the funding agreement is fair and reasonable. The premium for the indemnity against adverse costs and disbursements is at least as provident as the indemnity provided by the Class Proceedings Fund, and depending on the recovery to the class, the premium could be less than that to which the Class Proceedings Fund would be entitled. It provides a reasonable reward to the funder in exchange for the necessary indemnity to permit the action to continue.

[8] Second, the funding agreement does not diminish the plaintiff’s control of the litigation in any way.

[9] Third, the evidence indicates that the funder can satisfy an adverse costs award in this proceeding to the extent of the indemnity provided under the funding agreement.

[10] Fourth, the requirements of confidentiality set out in the CPA are memorialized in the funding agreement.

[11] Fifth, as required by s. 33.1(10) of the CPA, the plaintiff has received independent legal advice from experienced class counsel. The plaintiff approves of the agreement.

[12] In these circumstances, I grant the motion and approve the third-party funding agreement.

[13] Order to go in accordance with the draft I have signed.

J.T. Akbarali J.

Date: September 26, 2024