L.C., E.M.P. by Her Next Friend L.C., D.C. by His Next Friend L.C. v. C.C. by Her Next Friend, 2012 ABQB 394

Court of Queen ’ s Bench of Alberta Citation: L.C. v. Alberta (Metis Settlements Child & Family Services, Region 10), 2012 ABQB 394 Date: 20120614 Docket: 0703 10836 Registry: Edmonton Between: L.C., E.M.P. by Her Next Friend L.C., D.C. by His Next Friend L.C. and C.C. by Her Next Friend L.C.

Plaintiff - and - Her Majesty the Queen In Right of Alberta and Metis Settlements Child & Family Services, Region 10 Defendants Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act . See the Child, Youth and Family Enhancement Act , s. 126.2.

Corrected judgment: A corrigendum was issued on September 25, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________

Introduction [ 1 ] EMP is the representative plaintiff in a proposed class action arising out of allegations that the Director of Child Welfare kept children in care notwithstanding that care plans had not been filed in accordance with the provisions of the Child Welfare Act . The theory behind the proposed class action is based on TS v. Alberta (Director of Child Welfare ), 2002 ABCA 46 . [ 2 ] This is an application by Robert Lee for approval of the contingency fee agreement he has entered into with EMP by her litigation representative, Philip Tinkler. Mr.

Tinkler was appointed litigation representative for EMP as a result of my decision in LC v. Alberta (Director of Child Welfare) 2011 ABQB 42 . Mr. Tinkler is a barrister and solicitor, practicing with Fraser Milner Casgain LLP in Edmonton. Law [ 3 ] To be enforceable, court approval of a contingency fee agreement in a proposed class action is required before or at the time of the application for certification pursuant to s. 39 of the Class Proceedings Act , SA 2003, c C-16.5. That

section provides: 39(1) A contingency fee agreement respecting fees and disbursements between a lawyer and a representative plaintiff is not enforceable unless, (

a) on the application of the lawyer made prior to or at the time of applying for certification of the proceeding, the agreement was approved by the Court, and (

b) after (

i) the common issues have been resolved, in the case of a trial of the common issues, or (ii) a settlement agreement has been approved, in the case of a class proceeding being settled, the judge who presided over the trial of the common issues or approved the settlement agreement has, on the application of the representative plaintiff or, if the representative plaintiff fails to apply, on the application of the lawyer, reviewed the contingency fee agreement for the purposes of ensuring that the fees and disbursements payable under the agreement are fair and reasonable in the circumstances.

(2) An application under subsection (1) may, (

a) unless the Court otherwise orders, be brought without notice to the defendant, or (

b) if notice to the defendant is required, be brought subject to any terms or conditions respecting disclosure of the whole or any part of the agreement relating to any fees and disbursements as the Court may order.

(3) Unless the Court otherwise directs, an application under subsection (1)(

b) may only be brought if the notice of the application sets out at least the following:

(

a) the actual amount of the fees and disbursements as calculated; (

b) the right of any class member or subclass member to object; (

c) the time and place at which the application is to be heard; (

d) those steps or procedures that a class member or subclass member must take or carry out in order to be heard.

(4) Interest payable on fees under a contingency fee agreement approved under subsection (1) must be calculated in the manner set out in the agreement or, if not so set out, (

a) at the interest rate prescribed under the Judgment Interest Act for pecuniary damages, or (

b) at any other rate that the Court considers appropriate.

(5) Interest payable on disbursements under a contingency fee agreement approved under subsection (1) must be calculated in the manner set out in the agreement or, if not so set out, (

a) at the interest rate prescribed under the Judgment Interest Act for pecuniary damages, or (

b) at any other rate that the Court considers appropriate, on the balance of disbursements incurred as totalled at the end of each 6-month period following the date of the agreement.

(6) Amounts owing under a contingency fee agreement that is enforceable pursuant to this

section are a first charge on any settlement funds or monetary award.

(7) If a contingency fee agreement is not approved by the Court or the Court determines that the agreement should not be followed, the Court may (

a) determine the amount owing to the lawyer in respect of fees and disbursements, (

b) direct that an inquiry, assessment or accounting under the Rules of Court be carried out to determine the amount owing, or (

c) direct that the amount owing be determined in any other manner not referred to in clause (

a) or (b).

(8) Representative parties may seek funding of their costs and disbursements from other persons and organizations, including persons who are not members of the class. [ 4 ] Mr. Lee has elected to apply for approval at this stage of the proceedings rather than at the application for certification, which has not yet been scheduled. [ 5 ] There is little reported case law on applications under s. 39(1)(a). The only Alberta reported decision to date is Roth v. Alberta (Minister of Human Resources and Employment) , 2005 ABQB 505 .

To the extent that there have been other applications for approval of contingency agreements, it is likely that most have been made in the absence of the defendant, and those have proceeded under the protection of solicitor and client privilege normally attached to retainer agreements. [ 6 ] I referenced Roth in my decision in TW v.

Alberta (Edmonton and Area Child & Family Services Region 6) , 2010 ABQB 505 , noting at paras. 47 and 48 that I had declined to approve a contingency agreement as it related to the Plaintiffs in their representative capacity in a proposed class action, but that my reasons were sealed for confidentiality purposes. They remain sealed.

[ 7 ] Roth was also referenced in Fehr ( infra ), but only in relation to solicitor client privilege issues. It would appear that it has not otherwise been considered judicially. Analysis [ 8 ] Since my decision in LC v. Alberta ( supra ), nothing significant has transpired in the action other than the appointment of Mr. Tinkler and the negotiation of a contingency agreement between him and Mr. Lee on EMP’s behalf. [ 9 ] As a preliminary matter, I conclude that it was and remains appropriate to deal with this application in the absence of participation by the defendants. The application is to be made without notice to the defendant unless the Court orders otherwise under s. 39(2)(

a) of the Act . It would be a rare situation where the defendant has any status at this stage of the litigation to be involved in a fee approval process. The process is inherently private as between solicitor and client, and attracts solicitor client privilege. I see no reason here to direct that the defendants have any notice of the application for approval and I heard the application in their absence. [ 10 ] It is also clear that EMP is impecunious, as are most if not all of the potential class members who have contacted Mr.

Lee, so a contingency agreement relating to fees is the only practical way of enabling the plaintiffs to pursue their claims. Any fundamental objection to a contingency agreement in this case is without merit. [ 11 ] S. 39 is unique to Alberta. I share Slatter J.’s view (as he then was) in Roth . He stated at para. 12: [12] From a review of the Act , it would appear that the purposes of early approval are as follows: (

a) It gives counsel some idea of the type of fee that the Court might approve, so that counsel can decide whether he or she is prepared to continue with the retainer; (

b) It provides class members with some idea of the fee that would be payable, to allow them to decide whether they should opt in or out of the class proceedings; and (

c) It allows the Court to make some preliminary assessment of what would be a fair and reasonable fee for the class members to pay if the action is successful. [ 12 ] The preliminary review of the contingency agreement should keep these objectives in mind. Obviously if the case concludes differently than anticipated, the final fee might depart significantly from that which received primary approval. For example, if the procedures were much longer or shorter than anticipated, or if the final result was much higher or lower than anticipated, the fee might change substantially.

In that respect the actual results and course of the litigation will be much more important than any preliminary assessment of the reasonableness of the fee, and the preliminary approval given by the court likely will receive little weight. [ 13 ] Slatter J. held that at the preliminary approval phase, the Court should not consider the merits or risks of the action other than in a somewhat cursory way: [19] I therefore conclude that it is not appropriate for the Court to analyze or speculate about the merits of the action when approving the contingency agreement.

The Court might only examine the merits in the most general terms. For example, the Court might have regard to the anticipated face value of the average claim, to try and anticipate what the total fee for counsel might be... [20] It is perhaps appropriate to discuss the potential complexity of the litigation, without straying too far into the merits. For example, in

this particular case it is alleged that the Plaintiffs were entitled to certain payments under statutes, and that they were underpaid or overpaid. Accordingly, the fact-gathering process should not be too difficult. The payments are presumably well recorded in the records of the Defendant, and issues of credibility about the payments are unlikely to arise. If there are numerous class members, there will undoubtedly be a fair bit of accounting, but it will be more cumbersome than difficult.

It appears that the reasons why certain class members were overpaid might require some factual investigation into their particular circumstances, but that level of complexity will presumably not arise until after the common issues are decided. While all class proceedings are likely to be procedurally complex, this particular class proceeding does not appear to present any particular or unusual problems in that regard. [21] Beyond these brief comments, I expressly decline to form any conclusions about the merits or risks of the litigation. [ 14 ] I generally agree with these comments.

However, they must be considered in the context of the stage the litigation is at. I have been case managing this action for some time, along with parallel actions arising out of the Director’s alleged failure to file care plans in a timely way. [ 15 ] At this stage, the number of potential members of the class action is uncertain. Estimates range from 600 to many thousands. There are limitations issues, complicated by amendments to the underlying child welfare legislation and various limitations statutes. There are also damage issues which have not yet been explored in any significant way.

It is likely that damages beyond nominal damages will require expert evidence. Additionally, not every plaintiff for whom no timely care plan was filed may have suffered any real damages.

Some plaintiffs may have been no worse off in the continued care of the Director, depending on family circumstances. [ 16 ] It is thus too early to have any idea as to the value of the “average” claim. [ 17 ] While it may be relatively straightforward to determine whether in a particular case a care plan was filed in a timely way, the consequences of any such failure to a specific child may be complicated and difficult to ascertain. [ 18 ] The Province has defended the action vigorously, and I would make the following observations: 1. The action will be a difficult one; 2.

If the case is certified, there will likely be a number of sub-classes, having regard to limitations issues and the impact any failure to file had on individuals or groups of individuals; 3. This action will likely take a long time to litigate, and if certified, successful liability findings will only be a first step as damages beyond nominal damages will be costly and difficult to establish; 4. There will likely be significant expenses in retaining expert witnesses to prove individual damage claims if the matter proceeds to that stage.

Approval as Regards EMP Personally [ 19 ] As noted by Slatter J. in Roth , it is essential at this stage to review the contingency agreement for technical compliance with the Rules of Court . I am satisfied that the draft agreement is in compliance with the Rules of Court as well as the technical requirements of the Act . [ 20 ] Importantly in this case, EMP has the benefit of independent legal advice (indeed from the lawyer who was counsel for the representative plaintiff in Roth ). Mr. Tinkler attended the approval hearing and spoke in favour of approval. [ 21 ] In support of the application, Mr.

Lee filed his own affidavit, as well as an affidavit from his wife Lisa Matsuba-Lee. Lengthy

[21] In support of the application, Mr. Lee filed his own affidavit, as well as an affidavit from his wife Lisa Matsuba-Lee. Lengthywritten argument was submitted, as were a number of materials including: ∙ Fehr v. Sun Life Insurance Company of Canada, 2012 ONSC 2715 , 2012 O.J. No. 2029 (Ont. SCJ), on solicitor-client privilege in relation to fee issues in class proceedings; ∙

Article from CBA National April-May 2012 on stress in the legal profession; ∙ Class Actions: Contingency Fees by Michael Eizinga (circa 1996); ∙ Johnson v. Georgia Highway Express, Inc., (1974), 488 F.2d 714 (United States Court of Appeals, Fifth Circuit); [22] Following the hearing, I received additional submissions from both Mr. Lee and Mr. Tinkler. [23] Mr. Tinkler referred me to a 2010

article by Kirk M. Baert and Jonathan Bida, Fee Approval Hearings in Class Proceedings,presented at the Seventh Annual Symposium on Class Actions (Toronto: Osgoode Hall Law School of York University, 2010). [24] Mr. Lee clearly expressed his desire to deal with the contingency agreement at this stage of the proceedings, rather than waituntil the certification application. He wants to have a reasonable idea as to the basis for his compensation if EMP’s action succeeds, andif the class action succeeds.

His rationale is consistent with Slatter J.’s description of the benefits of approval at this stage of proceedingsas discussed in Roth. [25] While the agreement does not contain a “sliding scale” depending on the stage at which recovery may be made, having regardto the work done on the case to date and the difficulty and complexity of the matter, it is not as if the statement of claim has just beenissued. The action has been proceeding (albeit slowly) since 2007. Mr. Lee has already invested a significant amount of time on thematter.

Any recovery to EMP will have been the result of significant effort. [26] For the purposes of this decision, I need not disclose the precise terms of the contingency agreement. The percentage fee is inmy view reasonable and well within the range of rates for complicated personal injury cases where liability is in dispute. The rate issupported by Mr. Tinkler as EMP’s litigation representative. [27] The agreement reflects the fact that in my decision in LC v.

Alberta, (supra) I ordered the Province to pay advance costs forEMP at least to the stage of finalizing her pleadings, and it appropriately takes these costs into account. [28] At the hearing of this matter, I expressed concerns about the provisions in the agreement relating to the possible withdrawalby Mr. Lee as counsel in the matter. Mr. Tinkler advised that the agreement had been the subject of significant negotiations, and that theterms were the best that he could negotiate for EMP. [29] Mr.

Lee’s affidavit contains reference to attempts to find alternate counsel for EMP and to assist with the proposed classaction. I am satisfied from the evidence submitted that there are few, if any, other lawyers in Edmonton willing to take on the matter oreven be involved in it. Coupled with the overall reasonableness of the financial terms as between Mr. Lee and EMP, and the arm’s lengthnegotiations on behalf of EMP to obtain a fair and reasonable agreement for her, my concerns over the withdrawal provisions do notwarrant rejection of the agreement. [30] Baert’s and Bida’s 2010

article deals with after-the-fact fee approvals which equate to the approval process under s. 39(1)(b)of the Act. “Fairness” and “reasonableness” are discussed at length in the article. They are referenced in the Act as being relevant to boththe (1)(

a) and (1)(

b) approvals. [31] “Fairness” is described as relating to the process of negotiation of the fee agreement and the client’s understanding andappreciation of the agreement as negotiated, having regard to the potential results of the litigation and the skill and experience of thelawyer. It can be described as the “process” portion of the equation. “Reasonableness” relates to the amount of the fee, which requires anassessment of the factors described in the Johnson v. Georgia Highway case. That case is consistent with the principles on which

solicitor client fees are reviewed in Alberta. [ 32 ] As between EMP and Mr. Lee, I am satisfied that the agreement is fair. It has been negotiated in circumstances where EMP has had the benefit of independent legal advice, albeit from a lawyer acting as her litigation representative and not her lawyer. The negotiation process was fair, and commensurate with a damage action such as this involving a lawyer with some 20 years of experience. [ 33 ] I am also satisfied that as between EMP and Mr. Lee, it is reasonable. Mr. Lee has, in his affidavit, put forward various calculations based on possible awards.

Testing the fees produced by the rate in the contingency agreement with possible recoveries gives a fee range which appears reasonable, having regard to my assessment of the potential difficulties of the case as expressed in para. 18 hereof, as well as the likely effort required by a lawyer of 20 years’ experience to achieve such results.

Approval as Regards Potential Class Members [ 34 ] As regards the contingency agreement with EMP as representative plaintiff, my only concern with the agreement as it relates to the proposed class action is that the agreement does not contain any “caps” on the total fee recovery. This was one of my main concerns when I declined to approve a contingency agreement for the plaintiffs in an action TW, and TW As Next Friend for JW and DW v.

Her Majesty the Queen In Right of Alberta and Alberta (Edmonton and Area Child & Family Services Region 6, et al , Action No. 0803 08196. [ 35 ] I need not repeat my analysis as to the fairness of the agreement. My analysis of fairness does not change in relation to my analysis of the agreement vis-a-vis the proposed class. I must however focus on reasonableness. [ 36 ] Having concluded that the agreement is reasonable as between Mr. Lee and EMP, I must consider whether it is reasonable as regards the potential class. [ 37 ] Mr. Tinkler argues that reasonableness cannot be assessed at the initial s. 39(1)(

a) hearing. I am inclined to agree with him, but the legislature has instructed us otherwise. It has directed that both fairness and reasonableness be considered in both approval processes. [ 38 ] In that regard, I must look at the plaintiff’s claim and attempt to make some calculations of potential fees based on some rough quantification. [ 39 ] Mr. Lee’s argument in support of the approval of the agreement includes his “best case scenario” estimate of a total recovery for the class of $2 billion. Such a recovery would, of course, result in an enormous fee under the contingency agreement.

Such a fee might be disproportionate to the level of effort and risk undertaken. In argument, I expressed concerns about potential overpayment in such circumstances. Mr.

Lee quite fairly commented that there did not seem to be countervailing concerns about the potential for underpayment. [ 40 ] At this stage of the proceeding, and in the absence of any appropriate way of estimating the range of reasonable potential outcomes, I consider an exercise of trying to put caps on maximum fee recoveries to be unhelpful and inappropriate. [ 41 ] That being said, the concerns which led me to decline to approve the contingency agreement in TW as they related to her as representative plaintiff are on reflection not a valid reason to decline to approve the contingency agreement here.

The settlement judge or trial judge, with the benefit of the results and knowledge of the effort and resources actually undertaken, will be in a far better position than I to consider whether an uncapped or flat (no sliding scale) percentage fee is reasonable in the circumstances. [ 42 ] EMP has a cause of action which she wishes to pursue. She is prepared to be the representative plaintiff in the proposed class

action. Mr. Lee is the only lawyer who appears interested in taking her case. EMP’s litigation representative, himself an experienced lawyer, supports the agreement he negotiated with Mr. Lee. [ 43 ] If the action is certified as a class action, individuals will have the ability to opt out if they disagree with the fee structure in the contingency agreement. More importantly, at the end of the day, the fees actually paid to Mr.

Lee will be reviewed by the court, either as part of a settlement of the action or after the trial. [ 44 ] At that stage, the court will have the opportunity to review the total amount of compensation payable to Mr. Lee. Notwithstanding the terms and conditions of the agreement, and notwithstanding my approval of it at this stage, the judge approving any settlement or the judge hearing the trial will ultimately fix compensation based on his or her assessment of whether the “fees and disbursements payable under the agreement are fair and reasonable in the circumstances” (quoting from s. 39(1)(

b) of the Act) . [ 45 ] In argument, Mr. Lee placed a great deal of store on approval of the contingency agreement at this stage of the proceedings, indicating that it was essential for him to know what his remuneration might be in order to proceed with the litigation. [ 46 ] The Act clearly specifies a two part process. A contingency agreement to be enforceable must be approved by the Court both before or at the time of the certification application and after settlement or trial.

Approval of the contingency agreement by the settlement or trial judge will be based on what he or she considers to be “fair and reasonable in the circumstances”. [ 47 ] I have a difficult time here speculating on reasonableness. The settlement or trial judge will have the benefit of knowing the result, the recovery or likely recovery, and the amount of effort and resources which have been invested by counsel in pursuing the claim. [ 48 ] Mr.

Lee is probably correct in submitting that the settlement or trial judge may tend to downplay or underestimate the risks undertaken by counsel because the settlement or trial judge will be viewing things from the perspective of a favourable outcome for the plaintiff. Nevertheless, the judge will undoubtedly then consider the factors described in Michael Eizenga’s 1996

article including possible determination of a base fee having regard to the hours spent and a multiplier (ranging from no multiplier to 5 in the United States and 1.5 to 3 in Ontario as at the time of the article) to contingency amounts with a sliding scale percentage depending on the amount recovered. My approval of the contingency agreement will only be one factor to be considered, although I expect my determination of “fairness” may be a more significant factor as to that test. [ 49 ] Eizenga refers to 12 factors taken from the Johnson v. Georgia Highway Express case.

These factors are consistent with Alberta law, without being exhaustive: 1. Time and labour required; 2. Novelty and difficulty of the questions; 3. Skill required to perform the legal service properly; 4. Preclusion of other employment by the attorney to acceptance of the case; 5. Customary fee; 6. Whether the fee is fixed or contingent; 7. Time limitations imposed by the client or the circumstances; 8. Amount involved and results obtained; 9. Experience, reputation, and ability of the attorneys; 10. Undesirability of the case; 11. Nature and length of the professional relationship with the client; 12.

Awards in similar cases.

[ 50 ] Curiously, these factors do not directly address compensation for the risk of the case, although that may be included in “novelty and difficulty”. [ 51 ] Some of these factors require hindsight, or a rear view of the litigation. [ 52 ] It is clear that the settlement or trial judge cannot approve the contingency agreement if it has not been approved at or before the certification application.

It is also clear that the settlement or trial judge must review the contingency agreement in the context of the result obtained and with the benefit of knowing the effort and resources expended to get the benefit. [ 53 ] My approval of the contingency agreement at this stage should not give Mr. Lee any assurance that it will be approved by the settlement or trial judge.

He or she will then undoubtedly be looking at the amount of the fee generated by the result and the contingency agreement, and will have to weigh the factors above (and any other relevant factors) to determine if the amount is fair and reasonable. [ 54 ] My viewpoint looking forward is that the contingency agreement appears reasonable and reflective of the novelty and difficulty of the questions.

The ultimate determination, however, will have to be made by the settlement or trial judge with the full benefit of hindsight. [ 55 ] I repeat Slatter J.’s comments at para. 26 of Roth : Apart from that (copying charges) there is nothing so unusual or unfair about the proposed contingency agreement that would cause the Court to disapprove it at this stage. I deliberately state the proposition in the negative, because it is very difficult for the Court to actually pronounce at this stage that the fee that will result from the contingency agreement will be fair and reasonable when it is calculated.

That analysis will have to await the resolution of the litigation. However, at this stage I am satisfied that the retainer agreement should obtain preliminary approval of the Court as contemplated by s. 39(1)(

a) of the Act . [ 56 ] As the agreement is reasonable between Mr. Lee and EMP, it also appears, in my view, to be reasonable for potential class members. They might expect to pay similar fees to those incurred by EMP, subject to the consideration that fees in a class action have a public interest component. [ 57 ] It is that interest which comes to the forefront in a s. 39(1)(

b) application, and the need for there to be a determination that the overall fee is reasonable in all of the circumstances of the case, and that it does not offend the public interest in some way. I cannot comment on such considerations at this stage of the litigation, as it will involve an analysis of the total recovery and the total fee, amongst many other considerations. Factors to Be Considered [ 58 ] Roth provides some guidance as to the type of information which should be put before the approving judge under s. 39(1)(a). Slatter J. indicated that an affidavit from the representative plaintiff(

s) should be provided, deposing that they are satisfied that the fee arrangements are fair and reasonable. If the lawyer is taking instructions from a committee of proposed class members, a representative of the committee should provide that confirmation (at para. 14). This presupposes that the signed contingency agreement or the complete proposed contingency agreement be in evidence before the approving judge. [ 59 ] I would add that one of the challenges for the approving judge is that there is no one generally opposing approval of the contingency agreement.

The only people present at the application may be the judge, the lawyer and perhaps the client. Approval of the contingency agreement may have an impact on many people beyond the client who has signed the agreement. I was comforted in this

matter because EMP has a litigation representative, and the litigation representative is an experienced lawyer. He brought knowledgeable independence to the process. [ 60 ] A careful review of this process is fundamental to a determination that the agreement is fair. [ 61 ] In other cases, it would be extremely helpful for the approving judge to have evidence that the representative plaintiff (or committee) has had independent legal advice with respect to the fairness and reasonableness of the fee arrangements.

An alternative may be for there to be independent evidence of some sort as to the appropriateness of the arrangements. Otherwise, the approving judge may be in the uncomfortable situation of playing devil’s advocate. [ 62 ] In the absence of some independent confirmation, I expect many judges will have a difficult time approving a contingency agreement intended to be binding on an unascertained and as yet undetermined class. [ 63 ] Beyond some evidence of independent negotiation or confirmation, and the fairness of the process, the approving judge needs: 1. An outline of the plaintiff’s cause of action; 2.

An outline of the proposed class and common issues; 3. Information as to the potential size of the class and subclasses; 4. Some indication as to the remedies sought (quantification of an “average” claim); 5. Information as to the financial capacity of the plaintiff and potential class to justify the action proceeding as a contingency action; 6. Information as to the experience of counsel; and 7.

Information as to counsel’s normal billing practices, including normal hourly rates. [ 64 ] I do not offer this as a comprehensive list; each action undoubtedly has its own particular characteristics, but I would expect to have this information in all cases. [ 65 ] This is a process that will normally be conducted in the absence of the defendant, and without notice to the defendant.

It will normally be subject to solicitor client privilege, and I expect that the affidavits in support of the approval application and the agreement (whether approved or not) will remain confidential and likely sealed on the court file. [ 66 ] As seen in Fehr , confidentiality and solicitor client privilege may not be absolute, and there is a risk that an interested party may be able to obtain access to the information provided. In that regard, counsel should be careful about the contents of any affidavits and other materials they put before the court.

As held by Slatter J. in Roth , the approval process at this stage has little to do with the merits of the action.

It would appear unnecessary to disclose matters of a strategic or sensitive matter in the litigation itself. [ 67 ] I recognize that the contingency agreement may be widely distributed in the event the certification application is successful, and it may be difficult to preserve its privileged status (as also recognized by Slatter J.) That is a matter for counsel to manage and control when and if the contingency agreement is disseminated to potential class members (and thus new clients) if certification is successful. Conclusion [ 68 ] The contingency agreement as submitted by Mr.

Lee is approved pursuant to s. 39(1) (

a) of the Class Proceedings Act . It

should be sealed and placed on the court file. There has been no waiver of any solicitor client privilege with respect to the same. [ 69 ] Mr. and Mrs. Lees’ affidavits contain confidential information and privileged information relating only to the fee approval process. They too should be placed on the court file, but sealed. [ 70 ] The sealing of these records is subject to the rights of any interested persons to apply to vacate or vary the sealing order, on a proper evidentiary foundation and on proper notice to Mr. Lee and the Plaintiff through her litigation counsel. [ 71 ] I would encourage Mr.

Lee to keep careful time records on this file, as this may be an important factor in any review under s. 39(1)(b). Heard on the 17 th day of May, 2012 Dated at the City of Edmonton, Alberta this 13 th day of June, 2012. R.A. Graesser J.C.Q.B.A. Appearances: Robert P. Lee Old Strathcona Law Office for the Plaintiff Philip Tinkler Fraser Milner Casgrain LLP Litigation representative for EMP _______________________________________________________ Corrigendum of the Memorandum of Decision of

The Honourable Mr. Justice R.A. Graesser _______________________________________________________ The citation has been corrected from 2011 ABQB 394 to 2012 ABQB 394.