How Much is Too Much? Contingency Fees in Class Actions

The overall objective in the court approval process for class counsel fees is to arrive at a fee that is fair and reasonable. Ontario's courts have developed a number of benchmarks in determining fairness and reasonableness, focusing on the success achieved for the class and the work performed by counsel. In a series of cases released in late 2013, however, one Superior Court judge has posited that success achieved and work performed are either unascertainable or useless factors, and has proposed instead that all counsel be awarded a one-third contingency fee in all class action settlements. In this article, I critique that approach, and argue that it is is inconsistent not only with class proceedings legislation, but also out of step with US trends and with case law regarding contingency fees more generally.