Abstract: Although Ontario’s Class Proceedings Act, 1992 has now been in force for twenty-five years, a number of procedural and substantive issues in class actions litigation remain unsettled. Among these is the most appropriate method for rewarding class counsel for their efforts in successful class proceedings — whether that success is obtained by settlement or judgment. Notwithstanding the statutory provisions in the Class Proceedings Act, 1992 setting out a method of compensation for class counsel using a multiplier, or “lodestar,” approach, courts have been increasingly critical of that method from early in the development of the jurisprudence on these issues. A percentage-based approach to fees has gained traction in the class actions judiciary and is now commonplace among class action litigators. More recently, following the leadership of Edward Belobaba J, Ontario courts have moved towards accepting the presumptive validity of contingency fee agreements between class counsel and representative plaintiffs. Under this approach, the courts are generally deferring to the contractual agreement between the representative plaintiff and class counsel regarding compensation for class counsel in the event of a settlement or judgment, absent exceptional circumstances. Recent amendments to the Ontario Class Proceedings Act, 1992 have incorporated some of the factors courts frequently consider on class counsel fee approval motions, but the effect of these new provisions remains to be seen. This article provides an overview and history of class counsel fee approvals before moving on to discuss this movement towards a presumptive validity approach. The authors also discuss some of the limitations and potential pitfalls of the presumptive validity approach. Finally, this article looks toward the future of class counsel fee approvals and provides some comments on what may be necessary on this issue.
Kryworuk et al. (2021) studied this question.