Doucette v. Eastern Regional Integrated Health Authority, (2010) 294 Nfld. & P.E.I.R. 13 (NLTD)

• Judge: Thompson, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 12, 2010
• Jurisdiction: Newfoundland and Labrador
• Citations: (2010), 294 Nfld. & P.E.I.R. 13 (NLTD)

Doucette v. Health Authority (2010), 294 Nfld. & P.E.I.R. 13 (NLTD);

    908 A.P.R. 13

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. FE.028

Verna Doucette (plaintiff) v. Eastern Regional Integrated Health Authority (defendant)

(200601T2966CP; 2010 NLTD 29)

Indexed As: Doucette v. Eastern Regional Integrated Health Authority

Newfoundland and Labrador Supreme Court

Trial Division

Thompson, J.

February 12, 2010.

Summary:

An action brought against the Eastern Regional Integrated Health Authority with respect to alleged errors in ER/PR receptor testing was certified as a class action. The plaintiff sought an order approving a settlement of the class action and the plaintiff''s counsel fees and disbursements.

The Newfoundland and Labrador Supreme Court, Trial Division, approved the settlement and the legal fees and disbursements.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingent fees - Review and approval - [See Barristers and Solicitors - Topic 3311 ].

Barristers and Solicitors - Topic 3311

Compensation - Measure of compensation - Class actions - An action brought against the Eastern Regional Integrated Health Authority with respect to alleged errors in ER/PR receptor testing was certified as a class action - The plaintiff sought an order approving a settlement of the class action, which included the payment of $17,500,000 for the claims of all class members - The application also sought approval of the plaintiff's counsel's legal fee of $5,335,687.50 (30.4896% of the settlement amount) based on an agreement between the representative plaintiff and her counsel authorizing a fee of up to 33.3% of the settlement amount - The Newfoundland and Labrador Supreme Court, Trial Division, approved the fee retainer agreement and the resulting fees and disbursements - The court stated that "The technical evidentiary issues, the uncertainty of liability, the defences available, the time required to advance the case, the patient claims that would ultimately have to be assessed on an individual basis and the financial exposure of class counsel would have made this less than attractive to counsel and presented a daunting undertaking ... There are no features presented by which I can conclude that the contingency fee historically used in this Province in individual proceedings and accepted by this Court in a class proceeding in Rideout, supra, and within the range accepted nationally and internationally in class proceedings should be reduced in this case. The Contingency Fee Agreement not to exceed 33.3% of settlement proceeds operates reasonably in the context of this case" - See paragraphs 75 to 85.

Practice - Topic 9862.1

Settlements - Court approval - Class actions (incl. fee approval) - [See Barristers and Solicitors - Topic 3311 ].

Practice - Topic 9862.1

Settlements - Court approval - Class actions (incl. fee approval) - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "Rule 7A.10(3)(a) stipulates that 'in considering whether to approve a settlement of a class action, the court shall consider whether the settlement is fair, reasonable and made in good faith.' Courts in Canada have held the test to be whether the settlement is 'fair and reasonable and in the best interests of the class as a whole.' Courts have identified the following factors that may assist in making this determination: (a) likelihood of recovery, or likelihood of success; (b) amount and nature of discovery evidence; (c) settlement terms and conditions; (d) recommendation and experience of counsel; (e) future expense and likely duration of litigation; (f) recommendation of neutral parties, if any; (g) number of objectors and nature of objections; (h) presence of good faith and absence of collusion; (i) degree and nature of communications by counsel and plaintiff with class members during the litigation; (j) information conveying to the court the dynamics of, and the positions taken by the parties during, the negotiation; and (k) the risk of not unconditionally approving the settlement" - See paragraph 9.

Practice - Topic 9862.1

Settlements - Court approval - Class actions (incl. fee approval) - An action brought against the Eastern Regional Integrated Health Authority with respect to alleged errors in ER/PR receptor testing was certified as a class action - The plaintiff sought an order approving a settlement of the class action, which included the payment of $17,500,000 for the claims of all class members - The Newfoundland and Labrador Supreme Court, Trial Division, approved the settlement - The court reviewed the factors appropriate to a determination of whether a settlement was fair and reasonable and in the best interests of the class as a whole - The likelihood of success if lengthy litigation ensued appeared to have been very much in jeopardy - Future expense, in view of the length of further litigation, had to be anticipated as being high - Counsel and the parties had acted in good faith - There was no evidence of collusion - The plaintiff's counsel had maintained adequate communication with class members - The parties had obtained funds in recognition of a loss to each of them, publicly acknowledged - Class members had brought about significant responses from the defendant in its recognizing its obligations - No class member had objected to the settlement - The settlement was a fair and reasonable compromise in the circumstances and was concluded in good faith - See paragraphs 18 to 74.

Cases Noticed:

Semple et al. v. Canada (Attorney General) et al. (2006), 213 Man.R.(2d) 220; 2006 MBQB 285, refd to. [para. 7].

Sawatzky v. Société Chirurgicale Instrumentarium Inc. et al. (1999), 19 B.C.T.C. 220 (S.C.), refd to. [para. 7].

Rideout v. Health Labrador Corp. (2007), 270 Nfld. & P.E.I.R. 90; 822 A.P.R. 90; 2007 CarswellNfld 268; 2007 NLTD 150, refd to. [para. 7].

Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.T.C. Uned. 269; 40 O.R.(3d) 429 (Gen. Div.), affd. (1998), 113 O.A.C. 307; 41 O.R.(3d) 97 (C.A.), leave to appeal denied (1998), 235 N.R. 390; 118 O.A.C. 399 (S.C.C.), refd to. [para. 8].

Parsons et al. v. Canadian Red Cross Society et al. (1999), 103 O.T.C. 161; 40 C.P.C.(4th) 151 (Sup. Ct.), refd to. [para. 9].

Al-Harazi et al. v. Quizno's Canada Restaurant Corp. et al., [2007] O.T.C. Uned. F16 (Sup. Ct.), refd to. [para. 10].

McCarthy et al. v. Canadian Red Cross Society et al., [2001] O.T.C. 111 (Sup. Ct.), refd to. [para. 11].

Haney Iron Works Ltd. v. Manufacturers Life Insurance Co., [1998] B.C.T.C. Uned. H65 (S.C.), refd to. [para. 12].

Fraser et al. v. Falconbridge Ltd. et al., [2002] O.T.C. 485 (Sup. Ct.), refd to. [para. 13].

McCarthy et al. v. Canadian Red Cross Society et al., [2007] O.T.C. Uned. C76 (Sup. Ct.), refd to. [para. 13].

Baxter et al. v. Canada (Attorney General) et al., [2006] O.T.C. 1346; 2006 CarswellOnt 7879; 80 O.R.(3d) 481 (Sup. Ct.), refd to. [para. 14].

Epstein v. First Marathon Inc. et al., [2000] O.T.C. 109 (Sup. Ct.), refd to. [para. 15].

McCarthy et al. v. Canadian Red Cross Society et al., [2001] O.T.C. 470 (Sup. Ct.), refd to. [para. 16].

Healey v. Lakeridge Health Corp. et al., [2010] O.T.C. Uned. 725; 2010 ONSC 725, refd to. [para. 24].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 37].

Bohun v. Sennewald et al. (2008), 250 B.C.A.C. 231; 416 W.A.C. 231; 2008 BCCA 23, refd to. [para. 38].

Gregg v. Scott, [2005] UKHL 2; 330 N.R. 1, refd to. [para. 39].

Parsons v. Coast Capital Savings Credit Union, [2009] B.C.T.C. Uned. 330; 2009 BCSC 330, refd to. [para. 78].

Vitapharm Canada Ltd. v. Hoffman-La Roche Ltd. - see Ford et al. v. Hoffman-La Roche Ltd. et al.

Ford et al. v. Hoffmann-La Roche Ltd. et al., [2005] O.T.C. 208 (Sup. Ct.), refd to. [para. 79].

Bodnar et al. v. Cash Store Inc. et al., [2010] B.C.T.C. Uned. 145; 2010 BCSC 145, refd to. [para. 81].

Statutes Noticed:

Rules of Court (Nfld. & Lab.), Supreme Court Rules, rule 7A.10(3)(a) [para. 9].

Supreme Court Rules (Nfld. & Lab.) - see Rules of Court (Nfld. & Lab.), Supreme Court Rules.

Authors and Works Noticed:

Eizenga, Michael, Peerless, Michael J., Wright, Charles M., and Callaghan, John E., Class Actions Law and Practice (2nd Ed.) (2008 Looseleaf), pp. 13-23, 13-24 [para. 80].

Counsel:

David Klein, Chesley F. Crosbie, Q.C., and Douglas Lennox, for the plaintiff;

Daniel M. Boone, Janie L. Bussey and Janet L. Grant, for the defendant.

This application was heard at St. John's, Newfoundland and Labrador, before Thompson, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following decision on February 12, 2010.