RONALD ALLEN FIDDLER PLAINTIFF/APPLICANT v. JANSSEN INC., JANSSEN PHARMACEUTICALS, INC.,, 2023 SKKB 29

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 29 Date: 2023 02 08 Docket: QBG-RG-02809-2015 Judicial Centre: Regina BETWEEN: RONALD ALLEN FIDDLER PLAINTIFF/APPLICANT -and- JANSSEN INC., JANSSEN PHARMACEUTICALS, INC., JANSSEN ORTHO LLC., JOHNSON & JOHNSON, and JOHNSON & JOHNSON INC. DEFENDANTS/RESPONDENTS Appearing: Evatt Merchant, K.C., Iqbal Brar, Anthony Tibbs, Charles M. Wright and James E. Boyd for the plaintiff/applicant S. Gordon McKee, Jason Mohrbutter, K.C., and Alysha Li for the respondent FIAT MITCHELL J. February 08, 2023 I.

Introduction [ 1 ] The representative plaintiff, Ronald Allen Fiddler [plaintiff] applies pursuant to ss. 38 of The Class Actions Act , SS 2001, c C-12.01 [ CAA ] for an order certifying the class for settlement purposes as against Janssen Inc., Janssen Pharmaceuticals, Inc., Janssen Ortho LLC, Johnson & Johnson, and Johnson & Johnson Inc. [defendants]. Additionally, the plaintiff seeks an order approving the Settlement Hearing Notice and Notice Plan, Class Counsel Fees, and an honorarium for serving as the Saskatchewan

representative plaintiff. [ 2 ] This action was commenced by way of a statement of claim issued on December 2, 2015.

The claim alleges, amongst other things, that the defendants distributed Type II Diabetes medications – Invokana, Invokamet and Invokamet XR [Invokana Products] – which they had produced without a reasonable warning about certain side effects and injuries including ketoacidosis, acute kidney injuries, and lower limb amputations. [ 3 ] The plaintiff’s application was heard concurrently with the settlement approval hearing in The Estate of Raymond Duck, by his Estate Trustee, Beverley Millikin v Janssen Inc., Janssen Pharmaceuticals Inc., Johnson & Johnson, and Johnson & Johnson Inc. , 2022 ONSC 6689 [ Duck Estate ] presided over by Madam Justice Lynne Leitch.

In reasons for judgment indexed at 2022 ONSC 6689, Leitch J. approved the national settlement agreement in that proceeding. [ 4 ] As well, a settlement approval hearing has been held in a parallel action in Québec styled Steven Varnai and Joanne Giroux v Janssen Inc., Janssen Pharmaceuticals, Inc., Janssen Ortho LLC, Johnson & Johnson, and Johnson & Johnson Inc. , Québec Superior Court, Court File No. 500-06-00906-186 [ Varnai ]. On November 23, 2022, Mr.

Justice Bisson issued an order in Varnai approving the national settlement agreement. [ 5 ] As with Duck Estate , and Varnai , the defendants’ consent to the approval of the national settlement agreement but refrain from taking any position respecting counsel fees and disbursements as well as the honorarium for the representative plaintiff. [ 6 ] The national settlement agreement requires approval of all three courts before it can take effect.

These reasons explain why I, like Leitch J., and Bisson J., respectively, find the national settlement agreement is fair and reasonable, and in the best interests of the class members. Accordingly, I approve it pursuant to s. 38 of the CAA . [ 7 ] Additionally, I am satisfied that the Contingency Fee Retainer Agreement made between the plaintiff and class counsel is fair and reasonable, and I approve it pursuant to ss. 41(2) of the CAA . [ 8 ] Finally, I am satisfied that the proposed retainer for the plaintiff of $3,000 is appropriate. II. Overview A.

Materials Filed on this Application [ 9 ] In addition to the pleadings and the notice of application, the following materials were filed on this application:

(1) Affidavit of Anthony Tibbs sworn June 3, 2022 [Tibbs Affidavit];

(2) Affidavit of Jill McCartney sworn September 19, 2022 [McCartney Affidavit], and (3) a proposed Draft Order. B. Background [ 10 ] As noted, counsel for the plaintiff commenced this action in December 2015. It was fairly far advanced by the time the other actions were commenced. A certification application was scheduled to commence on October 19, 2020 and continued for five days.

Prior to that hearing, however, the parties to this settlement agreement began discussions respecting a possible resolution of the Canadian Invokana actions. [ 11 ] On October 14, 2020, counsel advised the court that the parties had agreed to work towards a settlement of these actions and requested an adjournment of the imminent certification hearing. [ 12 ] Subsequently, on June 15, 2022, this Court issued the Certification and Hearing Notice Order which alerted members of the public including putative plaintiffs that a hearing to approve the national settlement agreement of the settlement agreement would occur on September 29, 2022.

At that time, both plaintiff’s counsel and defendants’ counsel would make submissions respecting the appropriateness of the proposed settlement. As well, any person objecting to the settlement would also have an opportunity to voice their concerns. C.

Proposed National Settlement Agreement [ 13 ] The plaintiff claimed that the defendants owed a duty of care to him and others to ensure the Invokana Products were fit for the intended or reasonably foreseeable uses; to properly warn the plaintiff and physicians of the potential risks for developing injuries, conditions and other complications flowing from the use of Invokana Products, and to inform Health Canada and other regulatory agencies of the risks associated with the use of the Invokana Products. [ 14 ] The Saskatchewan Class is defined as follows: (

a) All persons resident in Saskatchewan who were prescribed and used Invokana, Invokamet and/or Invokamet XR in Saskatchewan at any time on or before June 15, 2022, the date of the certification; and (

b) All persons who by virtue of a personal relationship to one or more of such persons described above have claims for common law or statutory damages. [ 15 ] As set out in the national settlement agreement, the defendants have agreed to pay $1,500,000 to settle all class actions commenced against them in Canada. This amount is inclusive of all interest; taxes; costs; class counsel and other legal fees; settlement administration costs, and provincial health insurer claims.

It is also agreed that 10% of the settlement amount will be allocated to the Provincial Health Care Recovery Fund which is defined in the national settlement agreement. [ 16 ] The settlement compensation protocol is explained well in the McCartney Affidavit at paras. 36 to 39 as follows:

36. The Compensation Protocol allows for proof, by way of medical records, which may include contemporaneous physician orhospital records supplemented by a letter from the physician providing any needed clarification of the contents of the records, of eachEligible Injury claimed and proof of usage of Invokana Products to be established with contemporaneous medical and/or pharmacyrecords, or contemporaneous insurance benefit records, or documentation from the prescribing or treating physician.

Absent clearevidence to the contrary, it will be presumed that the Invokana Product prescription was filled and taken in accordance with prescription. 37. Appeals for the decisions of the Class Administrator will be heard by a Referee (as defined in the Compensation Protocol)selected by Class Counsel and approved by the Court. 38. The Compensation Protocol has been drafted to provide further guidance to the Claims Administrator (as defined in the SettlementAgreement) to help ensure that: (

a) only Class Members who satisfy the eligibility criteria set out in this protocol will receive compensation from the Net SettlementProceeds (as defined in the Settlement Agreement); (

b) similarly situated Approved Claimants will be treated as uniformly as possible; and (

c) Approved Claimants will receive timely compensation in a way that minimizes, to the extent reasonably possible, the ClaimsAdministration Costs and other transaction costs associated with implementation and administration of the Settlement Agreement. 39. The allocation of points will be at the sole discretion of the Claims Administrator and the points per for each injury level, relatedadditional points, and maximum point levels were based in part on research from insurance actuarial tables for injuries and BritishColumbia’s Insurance (Vehicle) Act PERMANENT IMPAIRMENT REGULATION, B.C.

Reg. 61/2021[.] [17] The settlement administration costs including notice costs which are estimated to be $35,692.95 for each noticeplan are to be underwritten from the global settlement amount. [18] Additionally, class counsel legal fees, disbursements and all applicable taxes are to be paid out of this amount.Class counsel have requested court approval of legal fees in the amount of $375,000 and applicable taxes. Counsel have also requestedan honorarium for the Saskatchewan plaintiff, Mr. Fiddler in the modest amount of $3,000. [19] The remaining amount will be utilized to compensate the members of the class.

This amount referred to as the“Net Settlement” was accurately described by Leitch J. in Duck Estate at paras 22 - 26 as follows: [22] The remaining amount, the Net Settlement, will be used to compensate all persons in Canada who used Invokana Products byprescription and who suffered acute kidney injury/renal failure, diabetic ketoacidosis, or amputation of lower limbs by certain datesbetween 2016 and 2017. [23] Consider this compensation criteria, class counsel believe a reasonable estimate of eligible claimants is approximately 45 people. [24] The Net Settlement proceeds will be paid pursuant to a Compensation Protocol and will be allocated to eligible SettlingClaimants on a pro-rata basis using a point system pursuant to which the most serious cases will receive the largest recovery. [25] Claimants must provide evidence confirming they were prescribed Inovankana Products and they must provide evidence of theirEligible Injury, which is clearly defined in the Compensation Protocol. [26] Direct notice will be given to all known Class members and the Notice Plan previously approved in relation to certification willbe utilized to provide notice of settlement.

III. Law [20] The law relating to the approval of a proposed class action settlement in Saskatchewan was extensivelyreviewed by Barrington-Foote J. (as he then was) in Perdikaris v Purdue Pharma Inc., 2018 SKQB 86, 17 CPC (8th) 119 [Perdikaris].Drawing upon jurisprudence from across Canada, he wrote at paras. 14-20 as follows: [14] The test to be applied on an application to approve a class action settlement pursuant to s. 38 of the Act [The Class Actions Act,SS 2001, c C-12.01] is uncontroversial.

Laing C.J.Q.B. (as he was then) summarized that test in Driediger v Ashley Furniture IndustriesInc., 2010 SKQB 437, 364 Sask R 130 [Driediger]. As he there noted, the court must be satisfied that the settlement is fair, reasonable,and in the best interests of the class as a whole. As he also noted, citing Parsons v Canadian Red Cross Society (1999), 40 CPC (4th) 151(Ont Sup Ct), the issue is not whether the settlement meets the demands of a particular member of the class.

Nor is it whether thesettlement is perfect, but whether it falls within a “zone of reasonableness”. [15] Similarly, as Sharpe J. (as he then was) noted in Dabbs v Sun Life Assurance Co of Canada (1998), (ONSC), 40 OR (3d) 429 (WL) (Ont Ct J): 30 … settlements "must be seriously scrutinized by judges" and that they should be "viewed with some suspicion". On the other hand,all settlements are the product of compromise and a process of give and take and settlements rarely give all parties exactly what theywant. Fairness is not a standard of perfection. Reasonableness allows for a range of possible resolutions.

A less than perfect settlementmay be in the best interests of those affected by it when compared to the alternative of the risks and costs of litigation. [16] The need for serious judicial scrutiny, to protect the rights of the many class members not before the court, also underpinned thefollowing comments by Belobaba J. in Sheridan Chevrolet Ltd. v Furukawa Electric Co., 2016 ONSC 729 [Sheridan Chevrolet]: 10 …The boiler-plate for settlement approval comes down to something like this: "We're experienced class counsel; we know whatwe're doing; there were lots of litigation risks; we negotiated the best possible deal for the class members; trust us." [emphasis in

original] … 12 If class action judges are to do their job (and be more than rubber-stamps) in the settlement approval process, and ensure that the settlement amount is indeed fair and reasonable and in the best interests of the class (and not just class counsel) then at the very least class counsel should provide affidavit evidence explaining why the actual settlement amount is fair and reasonable or more specifically, clear reasons why the settlement amount is in the "zone of reasonableness." [17] I agree.

Further, I agree with the following statement by Belobaba J. in Leslie v Agnico-Eagle Mines Ltd. , 2016 ONSC 532 , 90 CPC (7th) 201 : 12 I agree with American jurist Richard Posner that "a high degree of precision cannot be expected in valuing a litigation, especially regarding the estimation of the probability of particular outcomes." However, as Posner goes on to explain, a "ball park valuation" is nonetheless achievable and he urges the settlement approval judge to make every effort to "translate his intuitions about the strength of the plaintiff's case and the range of possible damages ... into numbers that would permit a responsible evaluation of the reasonableness of the settlement. [footnotes omitted] [18] Middlemiss v Penn West Petroleum Ltd. , 2016 ONSC 3537 [ Middlemiss ] , and Sheridan Chevrolet are to the same effect.

In both of those cases, Belobaba J. required the production of further evidence before approving a settlement. In Middlemiss , he also noted that “[e]arly stage settlements understandably attract more judicial scrutiny than, say, settlements achieved in the eve of the common issues trial”. In one sense, this is not an early stage settlement, as the Ontario, Québec and Nova Scotia claims were all filed in 2007.

However, the settlement was concluded before any application for leave or certification was heard. [19] Courts have proposed various non-exclusive lists of criteria that may assist in determining whether a settlement is reasonable. Driediger dealt with this issue as follows: 13 In Jeffery v. Nortel Networks Corp. , 2007 BCSC 69 , 68 B.C.L.R. (4th) 317 (B.C. S.C.) , Groberman J. at para. 18 noted the factors to be considered in approving a class proceeding settlement are now well established. He went on to recite them as follows: 1. Likelihood of recovery or likelihood of success; 2.

Amount and nature of discovery, evidence or investigation; 3. Settlement terms and conditions; 4. Recommendations and experience of counsel; 5. Future expense and likely duration of litigation; 6. Recommendations of neutral parties, if any; 7. Number of objectors and nature of objections; and 8. The presence of arms-length bargaining and the absence of collusion. At paras. 19 and 20, Groberman J. went on to note: 19 In Fakhri v. Alfalfa's Canada Inc ., 2005 BCSC 1123 , 20 C.P.C. (6 th ) 70 (B.C.

S.C.) at para. 8 , Gerow J. added two additional factors to this list: 9. degree and nature of communications by counsel and the representative plaintiffs with class members during litigation; [and] 10. information conveying to the court the dynamics of, and the positions taken by the parties during the negotiation. 20 In Reid v. Ford Motor Co. 2006 BCSC 1454 (B.C. S.C.), at paragraph 11 , Gerow J. produced a slightly different list, this time adding the following as a factor: 11. if counsel fees were negotiated in the settlement, and if so, how big a factor are they; ...

At para. 28, Groberman J. summarized the foregoing factors as follows: 28 In

summary, then, the court must consider four broad questions before approving the settlement of a class actions: • Has counsel of sufficient experience and ability undertaken sufficient investigations to satisfy the court that the settlement is based on a proper analysis of the claim? • Is there any reason to believe that collusion or extraneous considerations have influenced negotiations such that an inappropriate settlement may have been reached? • On a cost/benefit analysis, are the plaintiffs well-served by accepting the settlement rather than proceeding with the litigation? and • Has sufficient information been provided to the members of the class represented by representative plaintiffs, and, if so, are they generally favourably disposed to the settlement.

[21] This statement of the law has subsequently been endorsed by other judges of this Court. See especially:Carruthers v Purdue Pharma, 2022 SKKB 214 at para 62 [Carruthers]; Larocque v Yahoo! Inc., 2022 SKQB 136 at paras 54-55, andAmmazzini v Anglo American PLC, 2019 SKQB 60 at para 19, [2019] 10 WWR 339. IV. Analysis A. Should the National Settlement Agreement Be Approved? [22] I begin by considering whether like my colleagues in Ontario and Québec I, too, should approve the nationalsettlement agreement that has been presented to all three courts.

It is well-settled that only a proposed settlement deemed to be fair,reasonable, and in the best interests of the class members as a whole should be approved. See: Perdikaris at para 14 referencingDriediger v Ashley Furniture Industries Inc., 2010 SKQB 437, [2011] 8 WWR 804 [Driediger]. To satisfy this standard, a proposedsettlement need only fall within a zone of reasonableness. Perfection in all respects is neither expected nor demanded.

See: Perdikaris atpara 14, and Driediger, at para 11 quoting Parsons v Canadian Red Cross Society (1999), 40 CPC (4th) 151 (QL) (Ont Sup Ct) at para69. [23] That said, when called upon to approve a proposed settlement agreement pursuant to s. 38 of the CAA, which isagreed to by all parties, a court should not function simply as a ‘rubber stamp’. See, for example, Hardwick v Blue Buffalo CompanyLtd., 2021 ONSC 5297 at para 12 [Hardwick]. Rather, like any proposed settlement agreement, such an agreement should be scrutinizedwith care.

See: Dabbs v Sun Life Assurance Co. of Canada (1998), (ON SC), 22 CPC (4th) 381 (QL) (Ont Gen Div)at para 30, aff’d (1998), (ON CA), 165 DLR (4th) 482 (Ont CA) quoted in Driediger at para 12. [24] I have reviewed the various affidavits filed on this application, as well as the national settlement agreementitself. I have considered the helpful oral submissions of counsel. Additionally, I have had the benefit of reading the reasons for judgmentof Leitch J. in Duck Estate, and the extensive order of Bisson J. in Varnai.

Like them, I am persuaded that the proposed nationalsettlement agreement is fair, reasonable, and in the best interests of the class members as a whole for the following reasons. [25] First, the parties were represented by experienced class action counsel. The settlement was achieved afterconsiderable negotiation. Class counsel were alive to various and significant legal challenges they faced as the matter progressed due toquickly evolving science reflected in the literature These challenges were summarized in the McCartney Affidavit at paras. 25-27 asfollows: 25.

As set out above, there are three failure to warn claims: lower-limb amputations, acute kidney failure, and DKA [diabeticketoacidosis]. Although it is our view that there is some evidence supportive of each failure to warn claim, we face significant liabilitychallenges on each issue as well as with establishing general causation. Individual causation would also be difficult in many cases giventhe alleged injurie and underlying diabetes. 26. The underlying comorbidities associated with diabetes pose very significant causation issues.

As Type 2 diabetes, InvokanaProducts users are at significant risk of lower-limb amputation, kidney issues, and diabetic ketoacidosis. The case relates to increasedrisks of adverse events to which the class population is already exposed, which poses evidentiary difficulties for establishing causation. 27. The proposed settlement is discounted to recognize the evolution of the science as reflected in the literature and the risk withlitigation, but most importantly the significant causation issues with these injuries in this population of claimants.

It is also noted that thetiming between approval of Invokana Products for sale in Canada and the relevant warning changes is not prolonged, which limits thenumber of individuals exposed to the alleged failures to warn. [26] I am persuaded that in light of these evidentiary difficulties, the settlement is not only reasonable but likely thebest result class counsel could achieve for class members.

Put another way, counsel have demonstrated that on a cost/benefit analysisthe plaintiff and other class members are well-served by accepting this proposed settlement rather than proceeding to litigating theirclaim any further. This is an important factor in the analysis. See, especially: Driediger at para 13 quoting Jeffery v Nortel Networks,2007 BCSC 69 at para 28, 38 CPC (6th) 295. [27] Second, the settlement compensation protocol is not complicated and should be understood by eligible classmembers without too much difficulty.

It includes a rational and reasonable methodology for assessing appropriate compensation to bepaid to individual class members. [28] Third, this settlement was achieved with the agreement and endorsement of both the representative plaintiff andthe defendants. It is acknowledged by all sides that the settlement is a fair and reasonable one. While this fact in and of itself is notdeterminative of the reasonableness of the settlement, it is a significant consideration. See, for example: Hardwick at para 12. [29] Fourth, it is significant that no objections to the proposed settlement agreement were forthcoming.

Appropriatenotices were publicly disseminated prior to the settlement approval hearing. This factor lends further weight to the reasonableness of thissettlement agreement. [30] Accordingly, for these reasons I am satisfied that as the national settlement agreement is a fair and reasonableagreement, and in the best interests of the class members as a whole, it should be approved pursuant to s. 38 of the CAA. I so order. B. Should Counsel Fees and the Representative Plaintiff’s Honorarium Be Approved? 1. Law [31] Pursuant to s. 41 of the CAA, court approval is also required for counsel fees.

Section 41 reads as follows: 41. An agreement respecting fees and disbursements between a lawyer and a representative plaintiff must be in writing and must:

(

a) state the terms under which fees and disbursements are to be paid; (

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

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

(2) An agreement respecting fees and disbursements between a lawyer and a representative plaintiff is not enforceable unless approved by the court, on the application of the lawyer.

(3) An application pursuant to subsection (2) may: (

a) unless the court orders otherwise, be brought without notice to the defendants; or (

b) if notice to the defendants is required, be brought on the terms respecting disclosure of the whole or any part of the agreement respecting fees and disbursements that the court may order

(4) Amounts owing under an enforceable agreement are a first charge on any settlement funds or monetary award.

(5) If an agreement is not approved by the court, the court may: (

a) determine the amount owing to the lawyer respecting the fees and disbursements; (

b) direct an inquiry, assessment or accounting pursuant to The Queen’s Bench Rules to determine the amount owing; or (

c) direct that the amount owing be determined in any other manner. [ 32 ] Recently, in Carruthers , Popescul C.J.K.B. reviewed relevant principles for assessing the appropriateness of class counsel fees at paras. 95 – 97 as follows: [95] As stated by Warren K. Winkler, Paul M.

Perell, Jasminka Kalajdzic & Alison Warner in The Law of Class Actions in Canada (Toronto: Thompson Reuters, 2014) at 399: At its core, the fairness and reasonableness of the fees awarded in respect of class proceedings is to be determined in light of the risk undertaken by the lawyer in conducting the litigation and the degree of success or result achieved. [Footnote omitted] [96] Factors which have been found by courts to be worthy of consideration when determining whether a fee is fair and reasonable include: 1. the factual and legal complexities of the claim; 2. the risks undertaken, including the possibility that the action might not succeed; 3. the degree of responsibility of class counsel; 4. the monetary value of the matters at issue; 5. the degree of skill and competence demonstrated by class counsel; 6. the result achieved; and 7. the contingency fee agreement.

See Sweetland v Glaxosmithkline Inc. , 2019 NSSC 136 at para 28 . [97] Although the decision of whether a settlement agreement should be approved is a separate evaluation from whether the fees of class counsel should be approved, it is common practice for both applications to be brought at the same time. [ 33 ] As well, in Carruthers at para 112 , Popescul C.J.K.B. highlighted the non-exhaustive list of factors set out in Robinson v Rochester Financial Limited. , 2012 ONSC 911 at para 43 , [2012] 5 CTC 24 [ Robinson ] relating to applications seeking approval for compensation to be paid to representative plaintiffs.

The Robinson factors include: [43] … (

a) active involvement in the initiation of the litigation and retainer of counsel; (

b) exposure to a real risk of costs; (

c) significant personal hardship or inconvenience in connection with the prosecution of the litigation; (

d) time spent and activities undertaken advancing the litigation; (

e) communication and interaction with other class members; and (

f) participation at various stages in the litigation, including discovery, settlement negotiations and trial. [ 34 ] In Robinson at para 27 , Strathy J. (as he then was) referred to one of his earlier decisions – Baker Estate v Sony

BMG Music (Canada Inc.) , 2011 ONSC 7105 , 98 CPR (4th) 244 – where he set out appropriate principles to be applied when considering an application compensating a representative plaintiff. He stated: [27] In Baker Estate v. Sony BMG Music (Canada Inc.), 2011 ONSC 7105 , [2011] O.J. No. 5781 , I set out the principles applicable to this request at para. 93: The payment of compensation to a representative plaintiff is exceptional and rarely done: McCarthy v. Canadian Red Cross Society [2007] O.J. No. 2314 (S.C.J.) at para. 20 ; Windisman v. Toronto College Park Ltd. , [1996] O.J. No. 2897 (Gen.

Div.) ; Sutherland v. Boots Pharmaceutical plc , [2002] O.J. No. 1361 (S.C.J.) ; Bellaire v. Daya [2007] O.J. No. 4819 (S.C.J.) at para. 71 . It should not be done as a matter of course. Any proposed payment should be closely examined because it will result in the representative plaintiff receiving an amount that is in excess of what will be received by any other member of the class he or she has been appointed to represent: McCutcheon v. Cash Store Inc. [2008] O.J. No. 5241 (S.C.J.) at para. 12 .

That said, where a representative plaintiff can show that he or she rendered active and necessary assistance in the preparation or presentation of the case and that such assistance resulted in monetary success for the class, it may be appropriate to award some compensation: Windisman v. Toronto College Park Ltd ., [1996] O.J. No. 2897 (Gen.

Div.) at para. 28 . [ 35 ] Justice Strathy concluded his judgment respecting the question of additional compensation for a representative plaintiff in the form of an honorarium by stating that he agreed “with those who have expressed the opinion that compensation should be reserved to those cases where, considering all the circumstances, the plaintiff has been exceptional”: Robinson at para 43 . See further: Doucet v The Royal Winnipeg Ballet , 2022 ONSC 976 at paras 58-61 . For a contrary view, see: Redublo v CarePartners , 2022 ONSC 1398 at paras 94-114 . 2.

Analysis [ 36 ] At para. 18 of the McCartney Affidavit, it is averred that as of September 19, 2022, “Merchant Law Group LLP, Siskinds LLP and Siskinds Desmeules have expended $1,139,628.52 (exclusive of applicable taxes) in legal time and incurred $51,384.42 (exclusive of applicable taxes) in out-of-pocket disbursements” related to the prosecution of these actions.

In spite of these amounts, class counsel seek approval for legal fees in the amount of $375,000 – a significant discount – plus applicable taxes, and for disbursements in the amount of $51,384.42 plus applicable taxes. [ 37 ] It is apparent that counsel have devoted considerable time and effort on behalf of the class members and achieved a fair and reasonable settlement for them taking in to account the evidentiary challenges they had to confront.

This fee represents approximately 25% of the settlement amount, an amount which has been found to represent “a reasonable standard fee agreement in class proceedings litigation” by other courts. See for example: Carruthers at para 99 quoting Helm v Toronto Hydro- Electric System Limited , 2012 ONSC 2602 at para 22 , 40 CPC (7th) 310 . [ 38 ] Accordingly, I am persuaded that requested fees for class counsel are fair and reasonable and should be approved pursuant to s. 41 of the CAA .

I so order. [ 39 ] I am further persuaded that the disbursements requested are fair and reasonable, and I approve those as well. [ 40 ] Class counsel also seeks approval of an honorarium for the representative plaintiff, Mr. Ronald Fiddler in the amount of $3,000 paid from the settlement amount. I note that an honorarium for the representative plaintiff in Duck Estate was approved by Leitch J.

See: Duck Estate at para 38. [ 41 ] The McCartney Affidavit discloses at para. 14 that the representative plaintiff filed an affidavit in support of certification, and was cross-examined on that affidavit by counsel for the defendants. I note that other members of the proposed class also filed affidavits and were subjected to cross-examination. [ 42 ] I am uncertain whether Mr. Fiddler’s contributions to this action could be characterized as “exceptional” as conceived by Strathy J. in Robinson .

That said, he agreed to act as the representative plaintiff in this action, and willingly assumed the responsibilities related to that capacity. [ 43 ] Further, in my view, it would work an unfairness not to award Mr. Fiddler modest compensation for his efforts in view of the fact that an honorarium for the representative plaintiff in Ontario has been approved.

Accordingly, I am persuaded that a modest honorarium for the representative plaintiff in this matter in the amount of $3,000 is fair and reasonable in these circumstances, and I approve it. [ 44 ] Accordingly, I approved an honorarium in the amount of $3,000 for the representative plaintiff in this action, Mr. Ronald Fiddler. C. Approval of Notice and Notice Plan 1.

Law [ 45 ] Sections 21 and 24 of the CAA require notice be given in certain circumstances including after certification, and sets out various matters a court should consider when determining when and by what means such notice shall be given ( ss. 21(3) - (5) ).

Notices must be approved by the court before being disseminated to class members (s. 25). [ 46 ] The CAA contemplates notice of the certification of a class proceeding as well as a settlement of such a proceeding, be given class members “so they can understand the proceeding, its financial consequences, its binding effect if they do not opt out, and their right to opt out”: Johnson v Ontario , 2022 ONCA 725 at para 34 , 475 DLR (4th) 344 . The law is clear that adequate notice to class members must be given.

Yet, the lack of actual notice to any particular class member does not prevent the class from being bound by the settlement (except for opt outs) where sufficient efforts have been made to provide adequate notice. See: 3113736

Canada Ltd. v Cozy Corner Bedding Inc. , 2020 ONCA 235 at para 31 , 77 CBR (6th) 1 . 2. Analysis [ 47 ] In the Tibbs Affidavit, the proposed notices respecting this settlement as well as the Notice Plan are described at paras. 17 to 19. Copies of these notices as well as the Notice Plans were appended to the proposed draft order as Schedules “D” and “E”, respectively. Class counsel will send long form notices to any individual who inquires about the national settlement agreement.

The long form notices will also be e-mailed to each of the provincial health insurers by class counsel, and posted by class counsel on their respective websites. Copies of the short form notice will be published in various daily newspapers across Canada in both official languages. [ 48 ] I am persuaded that dissemination of these notices provide reasonable and adequate notice to all potential class members, particularly given the modest amount recoverable under the settlement. Accordingly, I approve the notices and the notice plan pursuant to s. 25 of the CAA . V.

Order [ 49 ] Accordingly, for the foregoing reasons I make the following orders: (

a) That the National Settlement Agreement dated November is fair, reasonable and in the best interests of the class as a whole and is approved pursuant to s. 38 of the CAA ; (

b) That class counsel legal fees in the amount of $375,000 plus applicable taxes are fair and reasonable and approved pursuant to s. 41 of the CAA ; (

c) That out-of-pocket disbursements in the amount of $51,384.42 exclusive of applicable taxes are fair and reasonable and approved pursuant to s. 41 of the CAA ; (

d) That an honorarium in the amount of $3,000 for the representative plaintiff, Mr. Ronald Fiddler to be paid from the settlement amount is fair and reasonable and approved pursuant to s. 41 of the CAA ; (

e) That the notices to class members and the Notice Plan is acceptable and approved pursuant to s. 25 of the CAA , and (

f) That subject to compliance with Rule 10-4 of The Queen’s Bench Rules , the draft order filed by class counsel may issue. J. G.G. MITCHELL