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2011

BElWEEN:
SUPREME COURT OF NOVA SCOTIA
JUNE ELWIN, HARRIET JOHNSON and DEANNA SMITI-
-AND -
Hfx. No. 343536
Court Administration
SEP 11 2014
PLAINTIFFS
Hal ifax, N.S.
THE NOVA SCOTIA HOME FOR COLORED CHILDREN, a body corporate
and THE ATTORNEY GENERAL OF NOVA SCOTIA, representing Her
Majesty the Queen in right of the Province of Nova Scotia
DEFENDANTS
Proceeding under the Class Proceedings Act, S.N.S 2007, c. 28
PLAINTIFFS' SUBMISSIONS FOR
APPROVAL OF COUNSEL FEES AND DISBURSEMENTS
MOTION HEARING DATE SEPTEMBER 17, 2014
Wagners
1869 Upper Water Street
Suite PH301 , Historic Properties
Halifax, NS B3J 1 S9
Solicitors for the Plaintiffs
Filed: September 11, 2014

INDEX


PAGE(S)

PART I Nature of the Motion and Overview .......................................................... 1

PART II The Procedural History ............................................................................ 1

PART III Issues ....................................................................................................... 11

PART IV Law and Anal ysis .................................................................................... 11

i. Fees in Class Proceedings Generally .................................................... 11

ii. Contingency Fee Agreements ................................................................ 12

iii. Presumptive Validity of One-Third Contingency Fee Arrangements .. 13

iv. Guidance from Precedent ....................................................................... 14

v. The Reasonableness of the Percentage-Based Fee is
Underscored by the multiplier approach ........................................... 15

vi. Multiplier on Base Fee ............................................................................ 16

Conclusion ................................................................................................................. 18

Appendix A Index of Authorities ........................................................................ 19


PART I NATURE OF THE MOTION AND OVERVIEW

1. This is a motion for approval of Class Counsels legal fees, disbursements
and applicable taxes with respect to the Settlement Agreements entered into with
the Defendants.

2. This Honourable Court has approved settlements which collectively provide
for the payment of $34,000,000.00. The settlements were achieved after, and
ensure finality to, over a decade of litigation. The achieved settlements are national
in scope and have resolved the claims of hundreds of victims of abuse at the Nova
Scotia Home for Colored Children (NSHCC). Satisfaction with the achieved
settlement can be surmised from the fact that no class members felt the need to opt-
out.

3. Class Counsel seeks approval of legal fees of approximately 19.4% of the
settlement amount. Viewed another way, the requested fee represents a multiplier of
approximately 1.22 on Class Counsels collective base time. Reimbursement for
disbursements incurred in prosecuting this litigation is also sought in the amount of
$240,091.73.

4. Having regard to the extent of the work performed, the benefits provided to
the class members through Class Counsels efforts and the significant risks
undertaken, it is respectfully submitted that the fee request by Class Counsel is fair
and reasonable and ought to be approved.

PART II THE PROCEDURAL HISTORY

5. Approximately 16 years ago, Class Counsel were approached by numerous
former residents of the NSHCC over allegations of abuse. In the years that followed,
commencing in March 2001, Class Counsel commenced individual actions on behalf
Plaintiffs Submissions re: Fee Approval 2

of sixty-two residents of the NSHCC. The final individual action was filed in
December 2004.

6. The litigation of the claims of the former residents of the NSHCC has been
contentious and complicated:
Year Course of Action
1998-2000 Class Counsel approached by many former residents of the
NSHCC concerning their allegations of abuse.
2001 Class Counsel files three Notices of Action and Statements
of Claim against the NSHCC, the Province, and various
Childrens Aid Societies.
2002 Class Counsel files thirty-two Notices of Action and
Statements of Claim against the NSHCC, the Province, and
various Childrens Aid Societies.
Class Counsel commences the gathering of relevant
documentation concerning the former residents (medical
records, income information etc.).
2003 Class Counsel files twenty-six Notices of Action and
Statements of Claim against the NSHCC, the Province, and
various Childrens Aid Societies.
The Province issues and serves sixty Demand for Particulars
on former residents of the NSHCC.
Class Counsel provides Answers to Demand for Particulars
on behalf of many former residents.
Defendants motion to summarily strike the action of a former
resident is dismissed by Kennedy C.J .
2004 Class Counsel files another Notice of Action and Statement
of Claim against the NSHCC, the Province, and various
Childrens Aid Societies.
The NSHCC issues and serves thirty-three Demand for

Plaintiffs Submissions re: Fee Approval 3

Particulars on its former residents.
Class Counsel continues to provide Answers to Demand for
Particulars on behalf of former residents.
Class Counsel continues the gathering of relevant
documentation concerning the former residents.
2005 Class Counsel provides Answers to Demand for Particulars
on behalf of former residents.
The NSHCC files and serves sixty-two Interrogatories on its
former residents.
Class Counsel provides Answers to Interrogatories on behalf
of the former residents.
The NSHCC begins to file Defences to the claims of its
former residents.
The Province begins to file Defences to the claims of the
former residents.
Class Counsel continues the gathering of relevant
documentation concerning the former residents.
Class Counsel begins to file and serve Lists of Documents
on behalf of the former residents.
2006 The NSHCC continues to file Defences to the claims of its
former residents.
The Province continues to file Defences to the claims of the
former residents.
Class Counsel continues the gathering of relevant
documentation concerning the former residents.
Class Counsel continues to file and serve Lists of
Documents on behalf of the former residents.
The NSHCC and the Province brought a motion for summary
judgment in relation to the claim of a former resident.
Robertson J . granted the motion as it related to the breach of

Plaintiffs Submissions re: Fee Approval 4

fiduciary duty allegation but declined to summarily dismiss
the claims on the basis of the limitation period.
2007 The NSHCC continues to file Defences to the claims of its
former residents.
The Province continues to file Defenses to the claims of the
former residents.
Class Counsel continues the gathering of relevant
documentation concerning the former residents.
Class Counsel continues to file and serve Lists of
Documents on behalf of the former residents.
The Nova Scotia Court of Appeal heard cross-appeals from
the former resident and the defendants. It reversed the
decision of Robertson J . in its entirety; breach of fiduciary
duty was permitted to continue, while all causes of action
subject to a limitation defence were summarily struck.
1

2008 Class Counsel continues to file and serve Lists of
Documents on behalf of the former residents.
The NSHCC provides Lists of Documents concerning its
former residents.
The Province provides Lists of Documents concerning the
former residents.
Class Counsel brings a motion for the production of relevant
Board minutes in the possession of the NSHCC and records
in the custody of the NSHCC relating to any complaints
made concerning any child in their care.
The Defendants conduct discovery examinations of the
former residents.

1
Milbury v. Nova Scotia (Attorney General), [2007] N.S.J . No. 187 (C.A.).


Plaintiffs Submissions re: Fee Approval 5

2009 The Defendants conduct discovery examinations of the
former residents.
Class Counsel conduct discovery examination of a
representative of the NSHCC.
Class Counsel conduct discovery examination of a
representative of the Province.
Class Counsel conduct discovery examination of a
representative of the Childrens Aid Society of Halifax
County.
Class Counsel brings a motion for the production of:
Documentation concerning wages, salaries,
bonuses;

Documentation concerning the funding, finances,
budget of the NSHCC;

Documentation related to pay rates for NSHCC
employees as authorized by the Province or
otherwise;

Documentation concerning the oversight,
management, supervision of NSHCC & its
employees;

Documentation dealing with the training criteria,
employment qualifications;

Documentation dealing with complaints, reprimands,
investigations;

Documentation dealing with hiring practice, criteria,
background checks;

Documentation related to any incidents reported to
police or RCMP;

Documentation dealing with incident reports, how
incidents handled, staff discipline;

Documentation dealing with incident reports, how
incidents handled, staff discipline;

Documentation reporting to the executive of the
NSHCC, Board, Government;


Plaintiffs Submissions re: Fee Approval 6

Documentation related to employee files, board of
directors files, executive director file;

Documentation relating to minutes of staff,
foundation, board or directors meetings;

Documentation used by staff for incident reports,
complaint forms, request for resident medical
treatment;

Documentation related to the systems in place to
deal with discipline, staff reprimands;

Documentation related to employee strikes; and

Documentation provided to employees, training
materials, staff handbooks.

The NSHCC advances a motion for summary judgment on
two former residents for all causes of action subject to a
limitation defence. Goodfellow J . found most causes of
actions were statutorily barred and summarily struck all
causes of action save their allegations of breach of fiduciary
duty.
2

2010 On behalf of the former residents subject to the summary
judgment motions, Class Counsel appealed. The two
appeals were heard in 2010. Both were dismissed.
3

Class Counsel apply for leave to appeal to the Supreme
Court of Canada. The application for leave to appeal was
dismissed.
4

The Defendants continue to conduct discovery examinations
of the former residents.
2011 Class Counsel attempt a return to the SCC by filing a motion
for reconsideration, on the basis that the SCCs Christensen
v. Archevque catholique romain de Qubec (endorsing a
2
Smith v. Nova Scotia, 2009 NSSC 137; Borden v. Nova Scotia, 2009 NSSC 132.
3
Smith v. Nova Scotia, 2010 NSCA 14; Borden v. Nova Scotia, 2010 NSCA 15.
4
Smith v. Nova Scotia, 2010 CarswellNS 591 (S.C.C.); Borden v. Nova Scotia, 2010 CarswellNS 316 (S.C.C.).


Plaintiffs Submissions re: Fee Approval 7

precautionary principle to summary judgment application
involving victims of sexual abuse) could not be reconciled
with the fact that leave was dismissed for the former
residents of the NSHCC. The Court declined to reconsider
the leave to appeal.
5

Class Counsel file Requests for Date Assignment
Conference and seek trial dates on behalf of three former
residents of the NSHCC. Consecutive trials are scheduled to
run from spring to fall of 2014.
2012 Class Counsel advanced another motion for production
seeking production of documents related to allegations of
mental, physical or sexual abuse suffered, witnessed, or
complained about at the NSHCC. Though production was
opposed by the NSHCC, J ustice Duncan orders production
by way of written judgment.
6

Class Counsel bring another motion for production for
relevant documents of the various Childrens Aid Societies
responsible for placing children in the NSHCC, including:

Correspondence, memoranda or directives from
the CAS to the NSHCC concerning any allegation
of abuse that surfaced up to the year 1989;

Records of any CAS investigation into allegations
of abuse at the NSHCC that surfaced up to the
year 1989, including memoranda, notes, and
directives assigning CAS staff or other parties to
investigate; and

Incident reports of abuse or allegations of abuse at
the NSHCC that surfaced up to the year 1989.

5
Smith v. Nova Scotia, 2011 CarswellNS 218 (S.C.C.).
6
Morrison v. Nova Scotia (Attorney General), 2012 NSSC 136.


Plaintiffs Submissions re: Fee Approval 8

7. Compared to other jurisdictions, Nova Scotia did not have class proceeding
legislation until a relatively late date. A contested class action was not certified in
Nova Scotia until 2010.
7
The early lack of available procedural tools made the
aforementioned steps (necessary for the early prosecution of the NSHCC residents
claims) complex and costly. Nonetheless, such steps were applicable to the claims
of all potential former residents; a fact that did not go unrecognized by J ustice
Robertson:
The pleadings recite extensive historical information about the operation of the NSHCC
from the 1920's through to the period of time the plaintiff was resident there in 1947-48.
We do not however have class proceedings legislation in this Province. The pleadings
appear to be generic in nature intended to apply to the circumstances of the other
potential claimants Mr. Wagner represents.
8


8. In early 2011, Class Counsel filed a Statement of Claim on behalf of
representatives of all former residents of the NSHCC. The action was brought under
the recently enacted, and adjudicated upon, class proceeding legislation.

9. The thousands of pages of documents which Class Counsel obtained and
reviewed via List of Documents, discovery undertakings and through their three
motions for production were subject to an implied undertaking of confidentiality.
Likewise, the admissions obtained by Class Counsel in the discovery examinations
of representatives of the NSHCC, Province and CAS were subject to the implied
undertaking rule.

10. Beginning in 2011, Class Counsel conducted research at the Nova Scotia
Archives and proceeded to request and review thousands of historical documents
under Nova Scotias Freedom of Information Act (FOIPOP). A portion of these
historical documents served as the evidentiary basis for the motion for certification
filed on February 17, 2012, along with the:

7
Morrison Estate v. Nova Scotia (Attorney General), 2010 NSSC 196.
8
Milbury (2006), supra, at para. 51.


Plaintiffs Submissions re: Fee Approval 9

Affidavit of Harriett J ohnson
Affidavit of Deanna Smith
Affidavit of Michael Dull
Affidavit of Aubrey Pelley
Affidavit of Deanna Smith
Affidavit of J ane Earle
Affidavit of Garnet Smith
Affidavit of Stacey Beals
Affidavit of Krista Borden
Affidavit of Tracey Dorrington-Skinner
Affidavit of Star-Ann Smith
Affidavit of Shirley Melanson
Affidavit of Harold Middleton
Affidavit of Sandra Scarth

11. On March 28 and April 2, 2013 four of the affiants were subjected to cross-
examinations. Class Counsel conducted a cross-examination of an affiant for the
Province.

12. On April 10, 2013 the representative plaintiffs reached a settlement with the
NSHCC. The settlement was approved as being fair and reasonable and in the best
interests of the class of former residents by order dated J uly 11, 2013.

13. On April 30, 2013 the Province brought a motion to strike all or portions of the
Plaintiffs evidentiary record. The record was amended to reflect the arguments
raised. By decision dated J une 26, 2013 the Court upheld the admissibility of the
majority of the disputed evidence.

14. On J une 10, 2013 the former residents and the Province commenced oral
submissions in a contested certification motion. The hearing was heard over J une
10, 11, 12, 13 and 14 and J uly 8, 9, 10, 11 and 12, 2013. In the months that
preceded and followed the certification hearing, the parties filed extensive written
briefs consisting of research and submissions addressing the following areas of
dispute:



Plaintiffs Submissions re: Fee Approval 10

i. Amendments to the plaintiffs Statement of Claim;
ii. Whether the plaintiffs had satisfied the certification criteria;
iii. The interpretation and applicability of various private statutes;
iv. The admissibility of letters authored by Peter McVey and Raymond Morse,
Q.C.;
v. Whether former residents would seek declaratory relief against the Crown
for equitable breaches that occurred prior to 1951;
vi. Whether the Province could be vicariously liable for the acts of Childrens
Aid Society employees; and
vii. Whether the Province had a non-delegable duty to adequately care for all
children in custody.

15. In a written decision released December 12, 2013, the Plaintiffs motion for
certification was granted. In late-2013 the representative plaintiffs and the Province
entered into settlement negotiations. Negotiations took place over several months
until, on J une 3, 2014 the plaintiffs and the Province, reached a settlement
agreement, both with respect to quantum and distribution. This settlement
agreement was found to be fair and reasonable and in the best interests of the class.
By order dated J uly 7, 2014 the settlement agreement was approved.

16. No former resident has opted-out of the action (either against the NSHCC or
the Province). It follows that the settlements achieved with both defendants will put
an end to the litigation of possibly hundreds of former residents, including those
whose early efforts in prosecuting individual actions led the way and laid the
important groundwork for this ultimate conclusion.




Plaintiffs Submissions re: Fee Approval 11

PART III ISSUES
17. There is one issue for the Courts consideration on this motion:
Are the fees and disbursements sought by Class Counsel fair and
reasonable?

PART IV LAW AND ANALYSIS
i. Fees in Class Proceedings Generally:
18. The fixing of fees in a class proceeding is governed by section 41 of the CPA,
under which the court may, amongst other things, approve a fee agreement or
otherwise determine the fees.

19. In the context of a class proceeding, a premium on fees is typically awarded
to Class Counsel for taking on meritorious but difficult matters. Courts have
recognized that the objectives of the CPA are dependant in part upon rewarding
counsel for taking on the risk inherent in litigating class proceedings.
9


20. Substantial Class Counsel fees have been awarded and accepted as a reality
in the class action context, as explained by J ustice Winkler (as he was then) in
Parsons v. Canadian Red Cross Society:
The legislature has not seen fit to limit the amount of fees awarded in a class
proceeding by incorporating a restrictive provision in the CPA. On the contrary, the
policy of the CPA, as stated in Gagne, is to provide an incentive to counsel to
pursue class proceedings where absent such incentive the rights of victims would
not be pursued. It has long been recognized that substantial counsel fees may
accompany a class proceeding.
10


9
Parsons v. Canadian Red Cross, [2000] OJ No. 2374, at para 13.
10
Ibid., at para. 56.


Plaintiffs Submissions re: Fee Approval 12

21. The general test asks the Court to consider whether the fees sought by Class
Counsel are fair and reasonable.
11
The factors to be taken into account in making
this determination are as follows:
the factual and legal complexities of the matters dealt with;
the risk undertaken, including the risk that the matter might not be certified;
the degree of responsibility assumed by Class Counsel;
the monetary value of the matters in issue;
the importance of the matter to the class;
the degree of skill and competence demonstrated by Class Counsel;
the results achieved;
the ability of the class to pay;
the expectations of the class as to the amount of the fees; and
the opportunity cost to Class Counsel in the expenditure of time in pursuit of
the litigation and settlement.
12


ii. Contingency Fee Agreements:
22. The Class Proceedings Act gives proposed representative plaintiffs the right
to enter into percentage-based fee arrangements with putative Class Counsel. Such
arrangements are not enforceable until they have received court approval.
Specifically, the relevant provisions read:
41 (1) An agreement respecting fees and disbursements between a
solicitor and a representative party must be in writing and shall
(a) state the terms or conditions 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 proceeding;
(c) where interest is payable on fees or disbursements referred to in
clause (a), state the manner in which the interest will be calculated; and
(d) state the method by which payment is to be made, whether by lump
sum or otherwise.
11
Gagne v. Silcorp Ltd., 1998 CarswellOnt 4045 (Ont. C.A.), at para. 26; Parsons, infra, at paras. 44-46.
12
Smith Estate v. National Money Mart Co., [2011] O.J . No. 1321 (Ont. C.A.), at para. 80.



Plaintiffs Submissions re: Fee Approval 13

23. The Retainer Agreements between Class Counsel and the representative
plaintiffs comply with the requirements of s. 41 of the CPA and ought to be approved
by the Court.
13


24. The trend in Canada is to award fees based on a percentage basis and is
seen as placing emphasis on the quality of representation and the benefit conferred
on the class. Winkler J . (as he was then) addressed the benefits of a percentage-
based approach in Crown Bay Hotel Ltd. Partnership v. Zurich Indemnity Co. of
Canada:

A contingency fee arrangement limited to the notion of a multiple of the time spent may,
depending upon the circumstances, have the effect of encouraging counsel to prolong the
proceeding unnecessarily and of hindering settlement, especially in those cases where the
chance of some recovery at trial seems fairly certain. On the other hand, where a
percentage fee, or some other arrangement such as that in Nantais, is in place, such a fee
arrangement encourages rather than discourages settlement. In the case before this court
the settlement averted a seven to ten day trial. Fee arrangements which reward efficiency
and results should not be discouraged.
14


iii. Presumptive Validity of One-Third Contingency Fee Agreements

25. Recent decisions have called for courts to uphold validity of 33% Class
Counsel fees. This is seen as providing a measure of predictability to the approval of
Class Counsel fees and a recognition that other approaches place too much
emphasis on arguably irrelevant or immeasurable metrics such as docketed time
(irrelevant) or risks (immeasurable).
15
J ustice Belobaba recently wrote:
Why should it matter how much actual time was spent by Class Counsel? What if the
settlement was achieved as a result of "one imaginative, brilliant hour" rather than "one
thousand plodding hours"?
1
If the settlement is in the best interests of the class and the
retainer agreement provided for, say, a one-third contingency fee, and was fully
understood and agreed to by the representative plaintiff, why should the court be
concerned about the time that was actually docketed? This only encourages docket-
padding and over-lawyering, both of which are already pervasive problems in class action
litigation.

13
Affidavit of Michael Dull, sworn September 11, 2014.
14
[1998] O.J . No. 1891, at para. 11; also see Endean v. Canadian Red Cross, [2000] B.C.J . No.
1254, at para. 74.
15
Cannon v. Funds for Canada Foundation, 2013 ONSC 7686, at para. 4.


Plaintiffs Submissions re: Fee Approval 14

If "risks incurred" was something judges could really measure on the material provided,
then this metric might make sense. Everyone understands that Class Counsel accept and
carry enormous risks when they undertake a class action. But I don't understand how a
judge, post-hoc and in hindsight, confronted with untested, self-serving assertions about
the many risks incurred, can measure or assess those risks in any meaningful fashion and
then purport to use this assessment as a principled measure in approving Class Counsel's
legal fees. And why are we approaching legal fees approval as a building blocks exercise
to begin with, working from the bottom up rather than from the top down? Why not start
at the top with the retainer agreement that was agreed to by the clients and their solicitor
when the class action began?

In my view, it would make more sense to identify a percentage-based legal fee that would
be judicially accepted as presumptively valid. This would provide a much-needed
measure of predictability in the approval of Class Counsel's legal fees and would avoid all
of the mind-numbing bluster about the time-value of work done or the risks incurred.
16


26. Where J ustice Belobaba recently affirmed the presumptive validity and
appropriateness of a 33% Contingency Fee Agreement, it is important to recall that
Class Counsel in the present case ask this Court to find as valid and appropriate a
19.4% contingency fee.

iv. Guidance from Precedent:

27. The requested fee percentage is within the range of reasonableness
established by the jurisprudence.
17
Notwithstanding that the fee would represent a
significant premium over what the fee would be based on time multiplied by standard
hourly rates, the Court in Helm v. Toronto Hydro-Electric System Ltd., approved a
percentage based fee of 25% of the recovery, plus disbursements and taxes and
found this percentage to be reasonably standard in class proceedings.
18
Strathy J .
(as he then was) stated that fees in the range of 20% to 30% are "very common" in
class proceedings.
19


16
Cannon, supra, at paras. 5-7.
17
Class Actions in Canada (Toronto, Canada Law Book) at para. 7.175 [contains a summary of the
percentage-based fees approved in other cl ass proceedings].
18
[2012] O.J . No. 2081, at paras. 22 and 25.
19
Baker Estate v. Sony BMG Music (Canada) Inc., 2011 ONSC 7105 (Ont. S.C.J .), at para. 63.


Plaintiffs Submissions re: Fee Approval 15

28. The Nova Scotia Supreme Court has yet to issue a reported judgment on a
percentage fee in the context of a class proceeding. However, Newfoundland courts
have issued two such judgments, with the average fee approved being 30.9%.
20

29. Recently the Federal Court in Manuge v. R accepted the validity a
percentage-based fee of 25 to 30% of the settlement award, but stated it is much
more difficult to support such an approach where the award is in the hundreds of
millions of dollars (as it was in that case).
21

30. Class Counsel seek approval of a contingency fee representing
approximately 19.4% of the total settlement. This percentage-based fee falls below
the range of fee percentages awarded in other class actions.
v. The Reasonableness of the Percentage-Based Fee is
Underscored by the multiplier approach :

31. There are generally two methods by which the reasonableness of counsel
fees are calculated: (1) Percentage-based fee, or (2) Multiplier-based fee.
32. The two are not mutually exclusive. In evaluating the reasonableness of a
percentage-based fee, the court will often perform a cross-check to determine
whether the resultant multiplier is within a reasonable range. Conversely, if class
counsel seek a multiplier-based fee, in deciding on an appropriate multiplier, the
Court will often cross-check by considering the size of the fee as a percentage of
the recovery to the class.
22

33. An analysis of an appropriate multiplier-based fee highlights the
reasonableness of the approximate 19.4% percentage-based fee in the present
case.

20
Doucette v. Eastern Regional Integrated Health Authority, 2010 NLTD 29, at paras. 75, 84-85;
Rideout v. Labrador Corp., 2007 NLTD 150, at paras. 19-21, 146, 172-173.
21
[2013] F.C.J . No. 363, at para. 50.
22
Parsons, supra, at para. 63; Gagne, supra, at para. 26.


Plaintiffs Submissions re: Fee Approval 16

vi. Multiplier on base fee:

34. The leading case on the quantification of appropriate fees in class
proceedings is the Court of Appeal decision in Gagne, supra, where the Court,
addressed the purpose of awarding premium fees in respect of successful class
proceedings:
[A] fundamental objective [of the CPA] is to provide enhanced access to justice to those
with claims that would not otherwise be brought because to do so would be prohibitively
uneconomic or inefficient. The provision of contingency fees where a multiplier is
applied to the base fee is an important means to achieve this objective. The opportunity
to achieve a multiple of the base fee if the class action succeeds gives the lawyer the
necessary economic incentive to take the case in the first place and to do it well.
However, if the Act is to fulfill its promise, that opportunity must not be a false
hope.
23


35. The Court of Appeal held that an appropriate multiplier is one that results in
fair and reasonable compensation to the solicitors and that a fair and reasonable
multiplier is appropriately placed in a range that might run from slightly greater than
one to three or four (of counsels base fee) in the most deserving case.
24

36. Ward Branch in Class Actions in Canada summarizes some of the multiplier-
based fees approved in other class proceedings. He writes, A study of Ontario fee
approvals from 1996-2006 found that the median multiplier was 2.74.
25

37. In Hislop v. Canada (Attorney General), the Court approved a multiplier of 4.8
times Class Counsels base fee and reasoned that My choice of a 4.8 times
multiplier reflects fair compensation for very devoted and experienced counsel who
carried enormous financial burden and risk in their commitment to access to justice
for class members.
26


23
Gagne supra, at para. 5.
24
Gagne, supra, at para. 26; the Court in Gagne awarded Class Counsel fees representing a multiple
of 2 on their base fee.
25
Class Actions in Canada, supra, at para. 7.175.
26
[2004] O.J . No. 1867, at para. 26.


Plaintiffs Submissions re: Fee Approval 17

38. The statement made in Hislop could fairly be made of Class Counsel in the
present case, who, for 16 years, have devotedly strived to achieve access to justice
on behalf of the victims of abuse at the NSHCC. In particular Class Counsel have:

Funded 16 years of disbursements and have borne enormous
financial burden (without certainty that such expenditures would
ever be reimbursed);
Accumulated very significant legal work without compensation for
over a decade (without certainty that such expenditures would ever
be reimbursed);
Continued their contingent representation in the face of significant
risks (highlighted by the able arguments advanced by the Province
at certification and the three successful summary judgment motions
brought by defendants);
Demonstrated a willingness to work and fund individual trials and a
common issues trial on a contingency basis.

39. As stated in Hislop, supra, [t]hese risks infuse the determination of the
appropriate multiplier.
27
It is the rare case that Class Counsel is willing to continue
to bear increased costs and risk for over a decade. It could reasonably be argued
that in such an instance, upon ultimate success, Class Counsel is entitled to at least
the average multiple of 2.74.

40. However, in this case, Class Counsels requested fee of approximately 19.4%
results in a multiple of only 1.22. Notwithstanding: (1) the significant risks faced, (2)
time/funds invested into the proceeding on a contingent basis, (3) the success
achieved on behalf of the victims of abuse at the NSHCC, and (4) the importance of
the resulting settlement to the larger Nova Scotia public the multiple of only 1.22 is
well below the average and at the very low end of the multiple range found to be
reasonable by the Ontario Court of Appeal.
28

27
Hislop, supra, at para. 12.
28
Gagne, supra, at para. 26.


Plaintiffs Submissions re: Fee Approval 18

Conclusion

41. The Representative Plaintiffs contracted for contingent representation which
results in a percentage-based fee of approximately 19.4% of the total settlement.
42. Class Counsel willingly bore the risk that their incurred time and
disbursements over the past 16 years would never be reimbursed. Ultimately the
assumption of this substantial risk resulted in a substantial benefit to the former
residents of the NSHCC.
43. The jurisprudence demonstrates approved percentage-based fees to average
in 20-30% range. Class Counsel seeks approval of less than this. The jurisprudence
demonstrates an average approved multiplier of 2.74. Class Counsel seek approval
of less than half of this.
44. The reasonableness of Class Counsels proposed percentage-based fee is
underscored by their assumption of considerable risk, significant efforts over 16
years, and the importance and value of the result ultimately achieved.
ALL OF WHICH is respectfully submitted this 11
th
day of September, 2014.

Raymond F. Wagner, Q.C.
Wagners
Solicitor for the Plaintiffs


Plaintiffs Submissions re: Fee Approval 19

INDEX OF AUTHORITIES REFERRED TO IN THE PLAINTIFFS SUBMISSIONS
FOR APPROVAL OF COUNSEL FEES AND DISBURSEMENTS



1. Baker Estate v. Sony BMG Music (Canada) Inc., 2011 ONSC 7105 (Ont. S.C.J .)

2. Cannon v. Funds for Canada Foundation, 2013 ONSC 7686

3. Crown Bay Hotel Ltd. Partnership v. Zurich Indemnity Co., [1998] O.J . No. 1891

4. Doucette v. Eastern Regional Integrated Health Authority, 2010 NLTD 29

5. Endean v. Canadian Red Cross, [2000] B.C.J . No. 1254

6. Gagne v. Silcorp Ltd., 1998 CarswellOnt 4045 (Ont. C.A.)

7. Helm v. Toronto Hydro-Electric System Ltd., [2012] O.J . No. 2081

8. Hislop v. Canada (Attorney General), [2004] O.J . No. 1867

9. Manuge v. R, [2013] F.C.J . No. 363

10. Morrison Estate v. Nova Scotia (Attorney General), 2010 NSSC 196

11. Parsons v. Canadian Red Cross, [2000] O.J . No. 2374

12. Rideout v. Labrador Corp., 2007 NLTD 150

13. Smith Estate v. National Money Mart Co., [2011] O.J . No. 1321 (Ont. C.A.)

14. Class Actions in Canada (Toronto, Canada Law Book)