Gallant v. The Roman Catholic Episcopal Corporation of Halifax, 2022 NSSC 347

SUPREME COURT OF Nova Scotia Citation: Gallant v. The Roman Catholic Episcopal Corporation of Halifax , 2022 NSSC 347 Date: 20221205 Docket: Hfx No. 479060 Registry: Halifax Between: Steven Gallant on his own behalf and on behalf of the class Plaintiff and The Roman Catholic Episcopal Corporation of Halifax and The Roman Catholic Episcopal Corporation of Yarmouth and The Archbishop of Halifax-Yarmouth Defendants Decision Settlement Approval Motion Judge: The Honourable Justice Christa M.

Brothers Heard: November 14, 2022, in Halifax, Nova Scotia Counsel: John McKiggan, K.C., Celeste Poltak and Adam Tanel, for the Plaintiff Melanie Comstock, K.C., Daniel Wallace and Natasha Puka, for the Defendants By the Court: Overview [ 1 ] This decision brings to an end the longstanding and complex class action between the plaintiff and the defendants, the Roman Catholic Episcopal Corporation of Halifax, Roman Catholic Episcopal Corporation of Yarmouth and the Archbishop of Halifax- Yarmouth, involving allegations of historical sexual assault.

The parties have reached a settlement in the amount of $10 million, which I have already formally approved with reasons to follow. These are my reasons for doing so. [ 2 ] This litigation was commenced on August 2, 2018 as a proposed class action under the Class Proceedings Act , S.N.S. 2007, c. 28 . The plaintiff alleges that he and other class members suffered sexual abuse at the hands of various priests of the Roman Catholic Episcopal Corporation of Halifax and the Roman Catholic Episcopal Corporation of Yarmouth.

The plaintiff contends that, since the 1950s and 60s, priests of the Episcopal Corporation have abused their power and authority by sexually assaulting children within their parishes. The plaintiff further alleges that the Archbishops and Bishops of the Archdiocese of Halifax and the Diocese of Yarmouth did

nothing to prevent the priests from preying on vulnerable children. The Notice of Action was subsequently amended twice. Defences were filed on June 26, 2020. [ 3 ] The defendants requested that two motions, a motion to stay and a motion to strike evidence, be heard prior to certification. A sequencing hearing was held on September 6, 2019. The court rendered a decision denying the defendants' request on January 9, 2020. The defendants then consented to the certification.

A Certification Order was issued on March 31, 2020 and amended on June 22, 2020 to change the notice period from May 30 until September 30, 2020 to June 2 until October 12, 2020. [ 4 ] Three common issues were certified, with the plaintiff moving to add two additional common issues in May 2021.

The motion was scheduled for October 2021; however, the defendants consented to the additional proposed common issues in June 2021. [ 5 ] The action was certified in negligence, breach of fiduciary duty , and vicarious liability on behalf of the following class: All individuals who allege that they were sexually abused by a priest of the Roman Catholic Episcopal Corporation of Halifax or Roman Catholic Episcopal Corporation of Yarmouth between 1960 and the date of certification March 31, 2020.

Individuals who have previously settled or otherwise released either the Roman Catholic Episcopal Corporation of Halifax or Roman Catholic Episcopal Corporation of Yarmouth cannot advance a class action claim for the same alleged abuse. [ 6 ] Following certification, the parties proceeded to mediation, which took place on numerous occasions over several months. As of March 20, 2021, the plaintiff determined that the protracted mediation process had failed.

In the summer of 2021, the plaintiff brought a motion to add aggregate damages to the certification while the parties moved forward with documentary discovery and production. The parties completed production in the spring of 2022 and the trial was scheduled to commence in September of 2023. After the plaintiff scheduled a motion to add aggregate damages but before it was heard, the parties returned to meditation with a second mediator. After days of mediation and continued negotiation, a settlement agreement was reached on August 22, 2022.

All counsel who appeared on this motion agreed that the negotiations were "hard-fought, challenging and exhaustive". [ 7 ] On September 7, 2022, the court approved the “Phase 1 Notice Plan” advising class members that a settlement had been reached and that the motion for approval of the settlement and legal fees requested would be heard on November 14, 2022. Counsel provided evidence confirming that the requirements of the order approving the hearing notice and the notice plan have been satisfied. No notices of objection were received, and no one appeared at the hearing to oppose the motion.

Approval of Settlement Agreement [ 8 ] Section 38(1) (

a) of the Class Proceedings Act provides that court approval is required to conclusively and finally settle a class proceeding. The test for approval is whether the settlement is fair and reasonable, and in the best interests of the class as a whole.

The following is a non-exhaustive list of factors the court may take into account in determining whether to approve a settlement: • The likelihood of recovery or success; • The amount and nature of discovery evidence; • Settlement terms and conditions; • The recommendation and experience of counsel involved; • Future expense and likely duration of litigation; • Recommendation of neutral parties, if any; • The number and nature of objections; • Presence of good faith and the absence of collusion; • Degree and nature of communications by counsel with class members; • The dynamics of, and positions taken during the negotiations; and • The risk of not unconditionally approving the settlement. [ 9 ] In assessing the reasonableness of the settlement, the above factors are not necessarily given equal weight, and not all enumerated factors need to be present in each case.

As the court noted at para. 73 in Parsons v. Canadian Red Cross Society , [1999] O.J. No. 3572 (S.C.) : [T]he settlement approval exercise is not merely a mechanical seriatim application of each of the factors listed above. These factors are, and should be, a guide in the process and no more.

Indeed, in a particular case, it is likely that one or more of the factors will have greater significance than others and should accordingly be attributed greater weight in the overall approval process. [ 10 ] Settlements must fall within a “zone of reasonableness”, and "reasonableness allows for a range of possible resolutions" ( Anderson et al. v. Canada (Attorney General) , 2015 NLTD(G) 167, at para. 81). Settlements do not need to be perfect to be approved. As stated in Ainslie v.

Afexa Life Science Inc. , 2010 ONSC 4294 : [31] The "zone of reasonableness" concept is helpful in guiding the exercise of the court’s supervisory jurisdiction over the approval of a settlement of class actions. It is not the court’s responsibility to determine whether a better settlement might have been reached. Nor is it the responsibility of the court to send the parties back to the bargaining table to negotiate a settlement that is more favourable to the class. Where the parties are represented – as they clearly are in this case – by highly reputable counsel with expertise in class action

securities litigation, the court is entitled to assume, in the absence of evidence to the contrary, that it is being presented with the best reasonably achievable settlement and that class counsel is staking his or her reputation and experience on the recommendation. [ 11 ] Here, it is clear that the case was negotiated at arm's length by experienced counsel (Rosenfeld Affidavit, October 28, 2022). In such cases, there is a strong initial presumption that the settlement reached is a fair one. [ 12 ] In Manuge v.

Canada , 2013 FC 341 , the court stated as follows: [6] It will always be a particular concern of the Court that an arms-length settlement negotiated in good faith not be too readily rejected. The parties are, after all, best placed to assess the risks and costs (financial and human) associated with taking complex class litigation to its conclusion.

The rejection of a multi-faceted settlement like the one negotiated here also carries the risk that the process of negotiation will unravel and the spirit of compromise will be lost. [ 13 ] This settlement occurred many years into the litigation, when the only remaining step was a common issues trial. At this stage, the knowledge base of counsel is very high. As stated in Klegg v. HMQ Ontario , 2016 ONSC 2662 , at para. 34 : Their [the parties'] knowledge base going into the mediation was as high as it ever would be, short of completing the trial and reading the reasons of the trial judge.

In short, the mediation that led to this settlement was based on layers and layers of actual, and not just imagined, information about the risks and rewards of further litigation. [ 14 ] In addition, this settlement approval motion concerns events that occurred several decades in the past. Any additional protracted delay is of concern to the court. The statements in Seed v.

Ontario , 2017 ONSC 3534 , are particularly apt: [13] Furthermore, and of some moment, I was more than modestly concerned that if this matter were not resolved currently, but, continued or was dragged out by the normal effluxion of hearing time and appeals, many of the class members, particularly those who passed through the defendant institution in the 50's and 60's, would not either participate in any resolution or would not live long enough to realize some finality to this

chapter of their respective lives. [ 15 ] Given the advanced age of the class members and the historical nature of this litigation, the benefits of a certain settlement that comes almost immediately cannot be overstated. As stated during the hearing, most class members are senior citizens. All of this militates in favour of an expedient resolution. [ 16 ] Furthermore, there were risks to the class establishing aggregated damages in this action.

The following excerpt from the plaintiff's brief at para. 30 is apt: The settlement here was concluded when experienced counsel’s knowledge base was at its highest, in a case concerning underlying events which occurred decades ago and in a situation where an aggregate award of damages would have been unprecedented and far from certain – necessitating lengthy individual assessments following the common issues trial and years of all attendant appeals – all of which augur strongly in favour of approval. [ 17 ] In reviewing the settlement documents, the payment of $10 million represents a substantial financial recovery for a class which is estimated to include approximately 90 individuals.

The affidavit of Mr. Rosenfeld indicates that counsel consulted with an actuarial expert to determine the aggregate sum necessary to provide compensation for all individual claims. In addition, class counsel conducted their own analysis and calculation informed by decades of experience in class actions based on historical abuse. [ 18 ] A continued prosecution, including a common issues trial plus potential appeals, includes the following real risks: (

a) Liability might not be established; (

b) An aggregate award of damages could have been denied, given that there has never been a successful aggregate damages award in Canada in a case of this nature; (

c) Such denial could have resulted in lengthy and protracted individual assessments; (

d) Proven damages could have been similar to or far less than the settlement; (

e) Class members would have been obliged to give viva voce testimony at trial, potentially causing them additional trauma; and (

f) Completion of trial, release of judgment, and all appeals would have likely taken at least four to five years. [ 19 ] In cases concerning historical events, Canadian courts have recognized the unique benefits of timely settlement. In McKillop and Bechard v. HMQ , 2014 ONSC 1282 , the court wrote: [28] There is no doubt that without a settlement, the proceedings will be protracted, the outcome uncertain and (even if successful) the class members will not receive compensation for years.

There is no assurance that at the end of this process they will receive any more than they will get under these Settlement Agreements. Given the advanced age of class members and the historical nature of this litigation, the benefits of an immediate and certain settlement cannot be overstated. [ 20 ] The following factors support the approval of this settlement: • Significant compensation fund with a simplified paper-based claims administration, with damages ranging between $30,000.00 and $350,000.00.

• A timely claims process that will result in compensation to class members in months, rather than years. • A confidential claims process. • The ability to request and receive an apology from the Archbishop. • Liability risks on the merits present at any common issues trial and the likelihood of the court ordering individual assessments following a common issues trial even if the Plaintiff were successful on the liability issues. [ 21 ] Stephen Gallant, the plaintiff in this action, swore an affidavit dated October 28, 2022, in support of the settlement approval. Mr.

Gallant alleges that in the late 1960s and early 1970s, while serving as an altar boy, he was sexually assaulted by one of the parish priests. He says that two of his brothers were also sexually assaulted by the same parish priest. Mr. Gallant was appointed as the representative plaintiff on March 31, 2020 by order of this court. Since that time, he has received regular reports from and had regular communication with class counsel. To date, Mr. Gallant has taken the following steps to represent the interests of the class members: 8.

To date, I have taken the following steps and others to fairly and adequately represents the interests of Class Members: (

a) retained Class Counsel; (

b) provided information for the drafting of the Amended Notice of Action; (

c) reviewed and approved the Amended Notice of Action; (

d) provided information for the drafting of an affidavit in support of certification; (

e) reviewed and swore an affidavit in support of certification; (

f) reviewed my own records for production; (

g) reviewed regular reports from and communicated with Class Counsel; (

h) discussed the prospects for trial with Class Counsel; (

i) provided information to Class Counsel for the purpose of a witness statement; (

j) assisted counsel in locating potential trial witnesses; (

k) agreed to testify at the common issues trial; (

l) discussed negotiations, mediation and settlement parameters with Class Counsel before and during the mediation and settlement discussions that followed; (

m) reviewed and approved the proposed Settlement; (

n) executed the Settlement Agreement; and (

o) provided information for and affirmed this affidavit in support of the settlement. [ 22 ] Mr. Gallant offered the following additional evidence in support of the settlement: 9. Class Counsel discussed with me the prospects of resolving this case by settlement several times. We discussed the various risks faced and process that would need to be undertaken if the case continued to trial and beyond – including an individual claims process if the [ sic ] we were successful at the common issues trial.

In advance of each mediation, Class Counsel explained the negotiation process and the strategy for how they would approach reaching a settlement. I approved of the negotiation strategies used at all of the mediation attendances. I was in communication with Class Counsel leading up to and during the mediations and settlement discussions leading to the Settlement. I completely and unreservedly support the Settlement. 10. I have been involved in this case for approximately four (4) years.

I am relieved not only for myself but for other members of the Class that this case has settled without the need to risk being unsuccessful at the common issues trial and avoiding the need to have class members testify and face the risk, delay and process necessary to have their claims determined after the common issues trial. There are many class members who are older than me and who would be at risk of passing away without any compensation had the litigation continued. 11.

While there is no amount of money that can compensate a victim of childhood abuse, I am gratified by the significant achievement that this settlement represents, both in terms of the monetary compensation and the formal apologies the Archbishop will be providing. Class Counsel kept me apprised of the Defendants' positions throughout this litigation. The Settlement represents a significant achievement on behalf of class members.

I am proud of the role I played in this achievement. [ 23 ] This affidavit is not determinative of the court’s approval but is certainly some evidence to be considered. [ 24 ] The previously mentioned factors, taken together, demonstrate that the settlement falls within the zone of reasonableness. Additionally,

Schedule “A” to the settlement agreement enumerates four general levels or categories of sexual assault, and prescribes a compensation amount for each specific category. This unique approach to settlement is trauma informed, and designed to provide claimants full compensation and choice of process. Class members who experienced assaults that fall within more than one category would be entitled to the higher category amount. The range of damages available through categories one to four are respectively:

1 - $30,000.00 2 - $60,000.00 3 - $110,00.00 4 - $140,000.00 [ 25 ] The claims process developed and negotiated includes the following steps. Individuals are to provide details of the abuse suffered, as well as any available details regarding the identity of the perpetrator. Claims are then referred to the administrator for processing, based on a paper record. For class members eligible for category three or four damages, they will have the option to claim specifically for the additional harms and effects of those assaults through

Schedule "B". That is, they may wish to seek additional increased damages, over and above

Schedule “A”, by participating in a further process under

Schedule “B”. This process would allow for additional compensation in an amount ranging between $120,000.00 and $210,000.00. As a result, the maximum award an individual may receive is $350,000.00. [ 26 ] Class counsel have undertaken to assist all claimants through the process, including attending any questioning and assisting in obtaining any documentation required for certain levels of claims.

Class counsel has undertaken not to charge any additional legal fees for such assistance. [ 27 ] A guiding principle of this settlement agreement is that claimants will receive damage awards that are consistent with the amounts paid by the defendants to settle previous individual sexual abuse actions. Since 2007, 40 individual claims alleging sexual abuse by priests were brought against the defendants.

All 40 actions were resolved through negotiated settlements, with settlement amounts ranging from $22,500 and $350,000. [ 28 ] The range of damages proposed in this settlement agreement is also consistent with the case law (see, for example, Zando v. Ali , 2018 ONCA 680 ; Nova Scotia (Attorney General) v . B.M.G. , 2007 NSCA 120 ; L.M.M. v. Nova Scotia (Attorney General) , 2011 NSCA 48 ; A.M.S. v. Wooton , 2016 NSSC 351 ). [ 29 ] The claims process spares class members of all the negative aspects associated with prosecuting one's own action without compromising the amount of non-pecuniary damages available.

The claims process will not require certain claimants to bear a documentary and disclosure production burden. The notice of the claims process will alert any and all victims that they may come forward to make claims. The process is more streamlined, and is scheduled to be concluded for all class members within one year's time. In addition, this court retains statutory supervisory jurisdiction over the claims process to monitor its progress and intervene to provide directions or other ancillary orders. [ 30 ] The proposed settlement includes the appointment of claims administrator. As in Sweetland v.

Glaxosmithkline Inc. 2019 NSSC 136 , the parties propose that RicePoint Administration Inc. be appointed as claims administrator. This company has extensive experience in this type of work and, like the court in Sweetland , supra , I too am satisfied that they are an appropriate party to appoint as claims administrator under the settlement agreement. [ 31 ] Ivan Bobanovic, Vice President of RicePoint Administration Inc., provided an affidavit sworn on October 27, 2022. The relevant contents of the affidavit are as follows: 5.

RicePoint provides notice and administrative services for class action settlements in Canada. Its bilingual services include the design and implementation of notice claims, the processing of claims, acting as the escrow agent for settlement funds, calculating class member entitlements, distributing settlement funds, and finally, reporting to the court and counsel on select aspects of an administration. 6.

RicePoint's operations include a 70-seat bilingual National Customer Contact Centre ("NCCC") in Montreal, Quebec, with the ability to add more seats as the daily call volume requires, and we have the capacity to scale up as required on an ongoing basis to meet client needs. Our agents are fully bilingual in English and French and, through language line services, are also able to respond in more than 200 additional languages. The NCCC operates 9:00 a.m. to 6 p.m. Eastern time, Monday-Friday.

The NCCC services approximately 590,000 calls per year, of which more than 200,000 are systematically managed by our Interactive Voice Response. 7. Over approximately the last 19 years, RicePoint has administered over 90 settlements of varying size and complexity and distributed more than $5 billion in settlement funds. Those settlements relate to government, securities, price fixing, medical, consumer and employment matters, and are some of the largest and most notable in Canadian history. 8. RicePoint staff has 25 years of accumulated abuse settlement experience. 9.

RicePoint has successfully administered, reviewed sensitive documentation, calculated monetary entitlement, and distributed money to class members in similarly complex class actions including, but not limited to Anderson vs. Her Majesty the Queen in the Right of the Province of Manitoba , Dixon vs. Dr. Norman Barwin , and Rezmuves vs. Viktor Hohot , Mignaca vs. Merck Frosst Canada Ltd. . … 11. RicePoint reviewed the Term Sheet detailing the Claims Process and Administration requirements and is willing and able to execute the necessary services.

A description of the proposed claims administration process is outlined below. 12. RicePoint will setup a designated toll-free line with live support options. Our support agents are training to quickly provide in- depth and accurate responses to frequently asked questions. Quality control measures will be in place to ensure call accuracy and compliance. RicePoint is alert to the complex nature of the calls and has protocols in place to deal with and escalate any sensitive matters.

13. RicePoint expects and will encourage claims to be submitted via a secure online claim portal. RicePoint uses an existing proprietary infrastructure to support online claims filing, which we developed and fine-tuned on cases we have administered in recent decades. We can design the online claim form to validate responses instantly following claims submission and to utilize numerous tactics that will ensure only complete and valid claims will be accepted. 14. RicePoint will also accept claims and correspondence sent by mail and email.

Incoming mail will be handled by our inhouse mailroom with all documentation scanned into the system of record same day. 15. RicePoint will review claims in accordance with the Claims Process and will collaborate closely with Class Counsel, Defence Counsel and Claimants to ensure all timelines and administrative requirements are met. 16. RicePoint will provide scheduled and customized reporting to Class Counsel and Defence Counsel outlining the status of claims received and being processed. [ 32 ] Attached as an exhibit to Mr.

Babanovic's affidavit is a cost estimate based on RicePoint's experience quoting a variety of such undertakings. The total estimated cost for 100 claims is $83,230.00. This is a reasonable fee in light of the work that will be required. [ 33 ] To summarize, the claims process is certainly in the best interest of the class. The following aspects of the claim process are of significant value to the class: (

a) the claims process is trauma-informed and explicitly intended to be restorative; (

b) no class member is required to testify publicly; (

c) any class member may request and obtain an apology from the Archbishop; (

d) the claims process will be confidential; (

e) class members are presumed to be acting honestly and in good faith; (

f) class members have options and choices within the compensation scheme with respect to burdens of proof, degrees of process and available quantum of damages; (

g) the claims process is intended to be completed within one (1) year's time; (

h) all class members may avail themselves of legal assistance by contacting class counsel to assist with completing claims or obtaining the requisite documentation, at no charge; and (

i) the claim form will be provided in an accessible format. [ 34 ] Given all of this, I conclude that the settlement reached is both fair and reasonable and is also in the best interest of the class. [ 35 ] This action sought vindication for an extremely vulnerable class. The settlement provides compensation and a measure of closure to survivors who have lived with the consequences and burden of the abuse for decades.

While no negotiated settlement is ever perfect, achieving everything that each party desires, this settlement is a fair, reasonable and a timely resolution of the decades-long pursuit of justice by the class members. Legal Fee Approval [ 36 ] Pursuant to the Class Proceedings Act , legal fees in a settled class proceeding must also be considered and approved by the court.

Class counsel seeks approval of a fee in the amount of $3,233,000 plus HST, based on a contingency fee percentage of 33% of the total settlement value, after deducting disbursements. [ 37 ] In deciding whether to approve class counsel’s request for legal fees, the court must determine whether those fees are fair and reasonable in all the circumstances. The factors to be taken into account are well established, and were summarized in Smith Estate v. National Money Mart Co. , 2011 ONCA 233 , as follows: (

a) the legal and factual complexities of the action; (

b) the risks undertaken, on both the merits and the prospects of certification; (

c) the degree of responsibility assumed by class counsel; (

d) the monetary value of the matters at issue; (

e) the importance of the issues to the class members; (

f) skill and competence demonstrated by class counsel throughout the action; (

g) results achieved; (

h) ability of the class to pay and the class' expectation of legal fees; (

i) the opportunity cost to class counsel in the expenditures of time in pursuit of the litigation.

[ 38 ] While class counsel submitted that contingency fee agreements should be presumptively valid and enforceable, they also acknowledge that such agreements are not determinative. I refer to the comments of Wood , J. (as he then was) in Sweetland , supra : [30] Some courts seem to place significant weight on the existence of a contingency fee agreement and take the view that the agreement should be presumptively valid and enforceable and the fee should only vary from the calculation if there is a principled reason to do so. (See for example, Cannon v.

Funds for Canada Foundation , 2013 ONSC 7686 , and Pro-Sys Consultants Limited v. Microsoft Corp. , 2018 BCSC 2091 ). This court has taken a somewhat more nuanced approach which I believe is appropriate given the nature of class proceedings and the fact that individual class members, whose interests must be protected by the court, were not involved in negotiating or signing the fee agreement. 31 I would adopt the rationale of Justice LeBlanc, as he then was, in Elwin v. Nova Scotia Home for Colored Children , 2014 NSSC 375 (N.S. S.C.).

In that case, he was considering whether to apply a presumption in favour of adopting the terms of the contingency fee agreement in assessing Class Counsel fees. On that question, he stated: 29 As between the presumption suggested by Cannon J., and the less deferential approach suggested by Barnes J., I prefer the latter. As Barnes J. explained, when the fee agreement is made, it is not known how matters will develop. That is not to say that the fee agreement is not a significant consideration, nor that it is not the starting point in the analysis.

However, the Act makes it clear that such an agreement is unenforceable without court approval. Moreover, by its nature, where fee approval follows a settlement, and counsel's recovery will be out of the settlement fund, there is no party to oppose it. This is not an adversarial proceeding like a motion for determination of costs as between parties.

As such I interpret the Act as imposing upon the court a duty to ensure that fees and disbursements are fair and reasonable, in view of the objectives and purposes of the Act and in view of the fee agreement with the representative plaintiffs. [ 39 ] Similarly, in Anderson v. Canada (Attorney General) , 2016 NLTD(G) 179, the court said: [94] Although a fee agreement reached between a representative plaintiff and class counsel should not be blindly accepted by the Court, it also should not be easily rejected or ignored.

It has generally been recognized that the fee agreement entered into between the client and counsel should be the starting point of the court's "fair and reasonable" analysis … [ 40 ] Accordingly, while I will not apply a presumption in favour of adopting the terms of the contingency fee agreement, the agreement will be a significant consideration, and the starting point of my analysis.

The retainer agreement was executed by Gallant and the class counsel in 2018 and provides as follows: 1(g) "Recovery" means the amount actually recovered by award, judgment, settlement or otherwise, including any amounts awarded or paid in any assessment of damages or other process ordered by the court, excluding any amount separately identified or specified as costs and/or disbursements. . . . 13. In the event of Success, Class Counsel shall be paid an amount equal to (

a) any disbursements not already paid to Class Counsel by the Defendant as costs plus applicable taxes and interest thereon; plus (

b) an amount equal to 33% of Recovery plus HST. [ 41 ] This retainer agreement is not unusual. Such agreements are usually on a contingency basis and provide for a fee in the range of 1/4 to 1/3 of the amount recovered. There is normally no payment obligation if the action is not successful. [ 42 ] In his affidavit, Mr. Gallant provided the following evidence in support of the legal fees contemplated in the contingency agreement: 14. I signed a retainer agreement when I agreed to be the representative Plaintiff. Attached as Exhibit "A" is a copy of the retainer agreement I signed with Class Counsel. 15.

I have been aware of the percentage of the compensation that Class Counsel would be seeking since I signed the retainer agreement, which provides for a contingency fee of 33% of the recovery. In addition: (

a) I knew that Class Counsel would spend hundreds of thousands of dollars in both time and disbursements prosecuting the case without promise of payment unless successful; (

b) I believed that the contingency fees sought were and are fair and reasonable in all of the circumstances; and (

c) I believed that had Class Counsel not taken on this action, these class members would have not received any compensation and recognition that the proposed settlement allows. … 17. If Class Counsel had not agreed to take on this matter on a contingency fee basis, assume all risk of adverse costs, as well as the risk of never being paid, I would never have been able to prosecute this case. I would not have been able to afford to hire counsel on a fee for service basis to prosecute a class action or even an individual action. I know that many of the other class members are in the same financial position as I am.

Without this proceeding, we simply would not have been able to access the justice system. 18. Class Counsel are asking for $3,233,000 (excluding taxes), which amounts to a contingency fee of 33% of the settlement amount. I appreciate that this has been five (5) years of work by my lawyers and, in my view, they should be paid for their work. I agree with the contingency fee of 33%.

[ 43 ] In Commonwealth Investors Syndicate Limited v. Laxton , [1994] B.C.J.

No. 1690 (C.A.) the court commented upon the fee agreement being the starting point of the court’s fair and reasonable analysis as follows: This is not to fix a fee either by a reconsideration of all the evidence and the application of judgment or arbitrarily, however one characterizes such a process, but rather to decide whether the agreement operates reasonably in the context.… With all this in mind, the court must then ask, as a matter of judgment, whether the fee fixed by the agreement is reasonable and maintains the integrity of the profession?

In other words, I think the amount payable under the contract is the starting point for the application of the court’s judgment. [ 44 ] With regards to a contingency fee agreement upwards to 33%, Justice Strathy (as he then was) in Baker (Estate) v. Sony BMG Music (Canada) Inc. , 2011 ONSC 7105 stated at para. 64 : There should be nothing shocking about a fee in this range. ... It serves as an inducement to the lawyer to maximize the recovery for the client and it is regarded as fair to the client because it is based upon the "no cure, no pay" principle.

The profession and the public have for years recognized that the system works and that it is fair. It allows people with injury claims of all kinds to obtain access to justice without risking their life’s savings. … [ 45 ] I do not find the percentage of 33% on its own an unreasonable fee but it is at the high end of a contingency fee agreement. [ 46 ] Another significant factor in the court’s assessment of the reasonableness of legal fees is the risk to class counsel.

In order for class proceedings legislation to achieve its objectives -- access to justice, behaviour modification and judicial economy -- there must be sophisticated and hard working class counsel prepared to act for the class and bring these actions forward.

Class counsel fees are to reward counsel for meritorious efforts and also to encourage counsel to take on difficult class action litigation. [ 47 ] At the time of commencing the action, the following risks existed: • the risk of being able to prove historical claims; • general litigation uncertainty in being able to meet the burden of proof at trial; • class action specific risks relating to certification, class size, and common issues; • case-specific legal risks relating to the facts of this case; • the risk of the unavailability of aggregate damages to which a contingency fee could be applied; • the uncertainty of the number and quantum of successful individual assessment claims to which a contingency fee could be applied if no aggregate damages were awarded; • the time it might take to recover, if at all; and • the risk that the time required to successfully prosecute this action would result in an fee recovery that would make such prosecution uneconomical. [ 48 ] These risks to class counsel’s ability to recover fees were all present when they chose to initiate this class proceeding and throughout the litigation. [ 49 ] David Rosenfeld, a partner at Koskie Minsky LLP, one of the two firms acting for the plaintiff, filed an affidavit affirmed on October 28, 2022, in support of this motion.

In his affidavit, which was uncontested, he describes arm's length negotiations over several months to reach the proposed settlement. The affidavit describes prolonged and hard fought negotiations.

The key terms of the settlement agreement include: • a $10 million settlement fund; • compensation for individual claimants ranging from $30,000.00 to $350,000.00; • an expansion of the class definition to include individuals who were abused between April 14, 1954 and March 31, 2020 instead of the original certified class definition which covered abuse between 1960 and the date of the certification, March 31, 2020; • a rigorous notice program to inform class members of their rights under the settlement; • a claims process that is exclusively intended to be restorative in nature and in which class members are assumed to be acting honestly and in good faith; and, • the option to obtain formal apologies from the Archbishop. [ 50 ] Claimants are required to provide details of the abuse suffered as well as any available details regarding the identity of the perpetrator.

Claims can then be referred to the administrator for processing based on a paper record, or the defendants may elect to proceed with tightly prescribed questioning of the claimant. Claimants will be assumed to be acting honestly in completing their forms and will not be required to publicly testify. Where necessary, claims will be referred to a private arbitration by an arbitrator jointly selected by the parties. The proposed claim form is intended to be simple and easy to complete by the class members with someone to assist them.

[ 51 ] As noted earlier, RicePoint Administration will be the settlement administrator. The proposed notice materials are simple and easy to read and will be understandable to class members or someone who wishes to assist them. The notice plan includes direct notice by mail and email, online advertising, print advertising and various forms of notice within all parties of the Roman Catholic Episcopal Corporation of Halifax and the Roman Catholic Episcopal Corporation of Yarmouth. [ 52 ] It is without a doubt that class counsel has significant and considerable experience in a variety of class actions.

The affidavit of Mr. Rosenfeld indicated that class counsel has devoted a significant amount of lawyer and clerk time on the file over the past five years. The value of this time as of the approval hearing is over $1 million, before taxes. Mr. Rosenfeld’s affidavit provided a detailed description of the time and effort devoted to the matter by class counsel. [ 53 ] Additionally, class counsel will be devoting significant hours to the implementation of the settlement. Counsel will be required to: (

a) review, revise and approve notice materials; (

b) monitor the implementation of the notice plan to ensure it has been disseminated in accordance with the approved notice plan; (

c) communicate with class members who contact class counsel with questions; (

d) assist class members with claim forms and commissioning affidavits, if necessary; (

e) assist class member with documentary proof requirements such as referrals supporting documentation; (

f) facilitating independent medical examinations as necessary; (

g) assist class members who the Defendants elect to question, attending interviews, examinations and adjudications; (

h) communicate with third parties such as caregivers, family members, and others who contact class counsel about the claims process; (

i) monitor claims submissions and claims review by the claims administrators to ensure appropriate processes are followed; (

j) address any questions or issues raised by the claims administrator in the review of claims; (

k) review updates from the claims administrator; (

l) review final distribution lists and processes; and (

m) attend to any other matter that may be raised during settlement implementation that requires class counsel's attention. [ 54 ] In the most recent historical abuse settlement that Koskie Minsky was involved in, Yeo v. Ontario , 2021 ONSC 4534 , class counsel devoted approximately $1 million in time towards post-approval administration and implementation of the settlement agreements.

The current estimate of counsel is that the value of time spent in post settlement approval on this file will range between $400,000.00 to $500,000.00. [ 55 ] Class counsel anticipates an additional 500 to 1000 hours in the post-settlement approval claims implementation phase (see Rosenfeld Affidavit at para. 82).

[56] Another risk for class counsel was that the settlement negotiations might fail. The parties entered into lengthy, hard foughtnegotiations in the spring of 2020 which initially, revealed little common ground. The negotiations were difficult, complicated, lengthy,and, until late June 2022, revealed little hope at conclusive resolution (Rosenfeld Affidavit, paras. 19 to 22 and 73 to 77). Complexnegotiations are a factor to be judicially considered in the analysis of what is a fair and reasonable fee. … Outright capitulation from either side of the table is not a realistic expectation.

There were arguable defences and a legitimate questionas to the ultimate liability of the governments. While recognizing that the victims had suffered a tragedy, the governments, as litigants,always had to bear in mind that they were the representatives of all of the people and the keeper of the public purse. The tension createdby these two concerns obviously complicated matters for the FPT governments and for the class counsel groups. Despite thesecomplexities, the parties persevered through arduous negotiations and reached an agreement to settle the outstanding litigation within alegal framework. (Parsons v.

Canadian Red Cross Society, (ON SC), [2000] O.J. NO 2374 (S.C.) [57] In addition, the fees were negotiated at arm’s length within the confines of the judicial mediation itself. The court also heardthat the consequences of an aggregate award being denied to the plaintiff could not be overstated. Counsel referred the court to Richardv.

British Columbia, 2015 BCSC 265, to help illustrate how individual assessment processes can take an exorbitant amount of time dueto intricacies and complexity of the process. [58] While there was a possibility of an aggregate award being certified, the ultimate decision on whether to make any such awardrested solely with the trial judge. This would be a novel approach to the quantification of personal injury damages. In fact, in Andersonv.

Canada (Attorney General), 2015 NLTD(G) 186, a similar type of common issues trial, an expert put forward to provide evidence tosupport an aggregate award of damages was not permitted to testify. The court rejected such expert evidence on the basis that the reportwas based on science used for a novel purpose, and the plaintiffs had not met the burden on them of establishing the reliability of theunderlying science for that purpose.

Suffice it to say, the unavailability of aggregate damages was a risk to the class on an ongoing basis. [59] Difficult but meritorious claims cannot be prosecuted diligently or at all without class counsel being willing and able to assumeall of the attendant financial risks. Without a contingency fee agreement, Mr. Gallant, and the class more generally, would have had noability to prosecute this important class action. As noted in John Wink Ltd. v. Sico Inc., (ON SC), [1987] O.J. No. 5(Ont.

H.C.J.), “[t]here can be no question that an injustice would result if a meritorious claim were prevented from reaching trial becauseof the poverty of a plaintiff” (para. 8). Such injustice was avoided here only because the class was able to access the justice system andobtain vindication through the provision of legal services on a contingency basis. [60] This action is clearly of public importance and is of extreme importance to the class. Class members have lived for decadeswith the burden of their experiences, without compensation or acknowledgement of the abuse perpetrated against them as children.

Classcounsel undertook the full responsibility for prosecuting this action and did not enter into a third-party litigation funding agreement. Consequently, class counsel alone carried the entire risk of failure and the spectre of an adverse cost awards. [61] There was a high degree of skill and competence demonstrated by counsel on both sides. I am satisfied that the resultsachieved represent a good result for class members in all the circumstances.

The level of compensation for approved claimants ismeaningful and the claims process accessible. [62] In considering the reasonableness of the fees and disbursements, I must also be mindful of the three goals of class proceedings.The following comments in Abdulrahim v. Air France, 2011 ONSC 512, are apt: [9] In class action litigation, the court must also consider the goals of class proceedings, particularly in terms of access to justice. Thefee of class counsel must be both fair and reasonable.

It should not only reward counsel for meritorious efforts, but it should alsoencourage counsel to take on difficult and risky class action litigation. The risk undertaken by the lawyer, and the success achieved, areimportant considerations in determining the fee: Maxwell v. MLG Ventures Ltd. (1996), (ON SC), 30 O.R. (3d) 304,[1996] O.J. No. 2644 (Gen. Div.); Windisman v. Toronto College Park Ltd., above; Serwaczek v. Medical Engineering Corp., above;Parsons v. Canadian Red Cross Society (2000), (ON SC), 49 O.R. (3d) 281, [2000] O.J.

No. 2374 (S.C.J.). [10] The courts have recognized that the objectives of the C.P.A. – judicial economy, access to justice and behaviour modification –are dependent, in part, upon counsel’s willingness to take on class proceedings. This, in turn, depends on the incentives available tocounsel to assume the risks and accept the financial burden of carrying class proceedings. A premium on fees is the reward to classcounsel for accepting this risk and taking on meritorious but difficult matters: Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd.,[2005] O.J. No. 1117 at paras. 59-61 (S.C.J.); Parsons v.

Canadian Red Cross Society, above, at 287. [63] The objectives of judicial economy, access to justice and behaviour modification were all advanced by class counsel’s decisionto bring this proceeding, and the fees sought are sufficient to reward them for their efforts and to encourage counsel to continue to takeon complex and risky class action litigation. Without counsel willing to take on these cases, meritorious claims like these could languishand vulnerable people in our society would not have an opportunity to obtain access to justice.

In addition, these types of claims advancebehaviour modification, not just for individuals, but for institutions and organizations as well. The affidavit of Archbishop AnthonyMancini sworn to on October 10, 2019, acknowledged that sexual abuse in the church had reached a crises level. Finally, judicialeconomy was advanced by the bringing of class proceedings rather than individual claims. Supplemental Evidence and Disbursements [64] According to the Rosenfeld affidavit, class counsel incurred $192,102.87 in disbursements, inclusive of taxes, since thecommencement of the action.

The following chart was included in the affidavit: Category Amount Incurred Internal Copy Charges $697.50

External Copy Charges $7,127.45 Telephone/Fax $223.80 Couriers/Deliveries/Postage $1,601.26 Service and Filing of Court Documents $548.53 Research (Westlaw, Quicklaw, Archives) $1,567.69 Travel $11,404.04 Accommodations $651.88 Meals $38.00 Expert Fees $108,443.15 Mediator Fees, Commissioner and Agency Charges, News Release, Publication Expenses, Consultant Fees $37,140.38 Taxes $22,655.69 TOTAL DISBURSEMENTS $192,102.87 [ 65 ] During the hearing on November 14, 2022, I asked class counsel to provide affidavit evidence concerning the number of lawyer hours spent and time incurred by class counsel.

In addition, class counsel was asked to file affidavit evidence attesting to disbursements. [ 66 ] Adam Tanel, a senior associate with Koskie Minsky LLP, affirmed an affidavit of November 16, 2022. He reviewed the docketed time of Koskie Minsky LLP and McKiggan Hebert LLP, and found a current combined docketed time for the two firms in the amount of $1,400,000.00. He reviewed the individual dockets and created a chart outlining the amount of time docketed for each step in the proceeding.

The following is the chart as found in para. 2 of his affidavit: Step in Proceeding Hours Value of Time Pleadings and Claim Investigation 61.8 $42,329.80 Third Party Funding Applications (ultimately opted to proceed without funding) 9.9 $7,633.08 Sequencing Motion 40.2 $27,667.40 Certification Motion 456.3 $292,042.00 Notice to the Class and Amendment of Certification Order due to COVID 48.8 $25,721.30 Mediation with Paul Torrie 302.0 $206,949.00 Productions and Document review 40.4 $12,665.64 Motion to Add Aggregate Damages 132.6 $90,820.90 Mediation with Justice Todd Archibald 317.4 $236,849.30 Negotiating Final Settlement Agreement and Drafting Settlement Documents 235.7 $141,386.70 Motion to Approve Notice of Settlement 12.5 $9,306.96 Settlement Approval 296.7 $210,980.60 Communications with Class Members 240.7 $94,770.00 Totals 2,195.0 $1,399,123.00 [ 67 ] Furthermore, Mr.

Tanel affirmed an estimate of billable time which would be devoted to assisting individual class members in the claims process: Further to paragraph 82 of the October 23, 2022 affidavit of David Rosenfeld, class counsel will likely spend additional time with an approximate value of $500,000 to assist with individual class members' claims. If there are 90 such claims, that require an average of 10 hours each, the process would cost $450,000 in time if the average billable rate were $500 per hour. [ 68 ] At the hearing, Koskie Minsky LLP agreed to waive all internal copying charges.

Consequently, the outstanding disbursements for Koskie Minsky LLP are $158,612.02, while the outstanding disbursements from McKiggan Hebert LLP is $40,934.10. Tia Howell, an office manager at McKiggan Hebert LLP in Halifax, swore an affidavit on November 17, 2022 which appended a list of disbursements incurred to date by that firm. The total disbursements are $35,644.96, plus $5,289.14 tax. The internal disbursements included filing fees, couriers, postage and photocopies. There were also mediation expenses, as well as actuarial services expenses.

Photocopies were charged at 25 cents per copy and I find those to be reasonable. [ 69 ] Given the evidence and representations of counsel, I find the disbursements reasonable. [ 70 ] In some cases, courts have held back a portion of the fees until the distribution plan or claims process have been completed. However, given the many years that have already passed, the significant contribution of professional time and disbursements by the Plaintiff's counsel and their demonstrated commitment to the interests of this class, I am satisfied that no holdback of legal fees is required in this matter.

Conclusion [ 71 ] These claims are precisely what the Class Proceedings Act is meant to address. In the courts earlier decision Champagne v. The

Roman Catholic Episcopal Corporation of Halifax, 2019 NSSC 395, it was recognized that this case is advancing historical claims andadvancing collective access to justice to vulnerable people for the most serious of claims. This is what the Class Proceedings Act wasmeant to address. The Supreme Court of Canada has described sexual assault as very different than any other types of assault “It’ssomething more than a simple act of violence but an assault upon human dignity” (R. v. Osolin, (SCC), [1993] 4 SCR595). [72] Ms.

Poltak has given an undertaking that class counsel shall report to this court by no later than June 15, 2023, on the status ofthe ongoing administration of the claims process and then again by no later than December 15, 2023, on final completion of the status ofthe claims process. [73] Counsel have acknowledged that any access surplus funds will be returned to the defendants.

They will also receive a finalreport from the claims administrator. [74] Given all the circumstances and after considering the applicable law and the relevant contextual factors, I approve thissettlement agreement, along with the legal fees and disbursements requested by class counsel. Brothers, J.