Elwin et al. v. Nova Scotia Home for Colored Children et al., (2014) 351 N.S.R.(2d) 363 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 06, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 351 N.S.R.(2d) 363 (SC);2014 NSSC 375

Elwin v. N.S. Home (2014), 351 N.S.R.(2d) 363 (SC);

    1111 A.P.R. 363

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. OC.024

June Elwin, Harriet Johnson and Deanna Smith (plaintiffs) v. The Nova Scotia Home for Colored Children, a body corporate and The Attorney General of Nova Scotia, representing Her Majesty the Queen in the right of the Province of Nova Scotia

(Hfx. No. 343536; 2014 NSSC 375)

Indexed As: Elwin et al. v. Nova Scotia Home for Colored Children et al.

Nova Scotia Supreme Court

LeBlanc, J.

October 16, 2014.

Summary:

As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children. Their proposed class action, which alleged that they had suffered physical, mental and sexual abuse at the home and sought damages, was settled for $34 million. The plaintiffs' counsel moved for approval of their fees and disbursements.

The Nova Scotia Supreme Court determined the allowable fees and disbursements.

Editor's Note: For decisions related to this action, see (2013), 332 N.S.R.(2d) 35; 1052 A.P.R. 35 and (2013), 339 N.S.R.(2d) 35; 1073 A.P.R. 35.

Barristers and Solicitors - Topic 3130

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

Barristers and Solicitors - Topic 3311

Compensation - Measure of compensation - Class actions - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children - Their proposed class action, which alleged that they had suffered physical, mental and sexual abuse at the home and sought damages, was settled for $34 million - The plaintiffs' counsel moved for approval of their fees and disbursements - The Nova Scotia Supreme Court discussed fees in class proceedings - The motion was governed by the Class Proceedings Act and by the contingency fee agreement between counsel and the representative plaintiffs - The fee agreement was not necessarily the primary consideration - When it was made, the parties did not know how matters would develop - That was not to say that the fee agreement was not significant nor that it was not the starting point in the fee analysis - However, the Act made it clear that such an agreement was unenforceable without court approval - The court's duty was to ensure that fees and disbursements were fair and reasonable in light of the objectives and purposes of the Act and in light of the fee agreement with the representative plaintiffs - See paragraphs 11 to 29.

Barristers and Solicitors - Topic 3311

Compensation - Measure of compensation - Class actions - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children - Their proposed class action, which alleged that they had suffered physical, mental and sexual abuse at the home and sought damages, was settled for $34 million - The plaintiffs' counsel moved for approval of their fees and disbursements - Under the contingency fee agreement with the plaintiffs, total fees were $6.6 million, representing 19.4% of the settlement - The Nova Scotia Supreme Court concluded that a reasonable class counsel fee was 17% of the total recovery - According to the estimates of actual time spent on the file between 1998 and 2014, total fees were about $5.4 million - There were serious gaps and deficiencies in the materials offered to verify counsels' claims regarding specific numbers of hours worked - It was not clear that fees and disbursements authorized under the Class Proceedings Act automatically subsumed fees and disbursements incurred in the forerunner individual proceedings - While the court accepted in principle that fees incurred in the parallel proceedings could be taken into account in assessing the global claim, it was necessary to discount certain amounts due to duplication of efforts - Further, the ultimate settlement was partly attributable to a change in government policy and occurred during the certification stage, well short of trial - See paragraphs 30 to 63.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - [See Practice - Topic 7150.4 ].

Practice - Topic 7131

Costs - Party and party costs - Disbursements - General (incl. discretion of court) - [See Practice - Topic 7150.4 ].

Practice - Topic 7150.4

Costs - Party and party costs - Disbursements - Items not recoverable as disbursements - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children - Their proposed class action, which alleged that they had suffered physical, mental and sexual abuse at the home and sought damages, was settled for $34 million - The plaintiffs' counsel moved for approval of their fees and disbursements - Total disbursements sought were $502,479, consisting of $457,831.53 plus HST of $44,647.47 - The Nova Scotia Supreme Court determined the allowable disbursements - Many of the costs claimed as disbursements were incurred before and after commencement of the class proceeding but were specific to individual proceedings - Costs incurred in the class proceeding were recoverable - General office expenses, filing and service fees and contracted legal services were allowed at 20% - Discovery costs of the three representative plaintiffs were allowed in full - The costs of expert reports were not allowed with the exception of reports prepared for the class proceeding - Costs relating to counselling services, a leave application to the Supreme Court of Canada and interest on a loan were not recoverable - The cost of posting notices of the settlements was allowed - See paragraphs 64 to 78.

Practice - Topic 9862.1

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

Cases Noticed:

Milbury v. Nova Scotia (Attorney General) et al. (2006), 248 N.S.R.(2d) 230; 789 A.P.R. 230; 2006 NSSC 293, varied (2007), 254 N.S.R.(2d) 181; 810 A.P.R. 181; 2007 NSCA 52, refd to. [para. 3].

R.L.B. v. Nova Scotia (Attorney General) et al., [2009] N.S.R.(2d) Uned. 52; 2009 NSSC 132, affd. (2010), 288 N.S.R.(2d) 387; 914 A.P.R. 387; 2010 NSCA 15, leave to appeal refused (2010), 410 N.R. 389 (S.C.C.), refd to. [para. 5].

L.A.S. v. Nova Scotia (Attorney General) et al. (2009), 277 N.S.R.(2d) 104; 882 A.P.R. 104; 2009 NSSC 137, affd. (2010), 288 N.S.R.(2d) 394; 914 A.P.R. 394; 2010 NSCA 14, leave to appeal refused (2010), 410 N.R. 390 (S.C.C.), motion for reconsideration denied, 2011 CarswellNS 218 (S.C.C.), refd to. [para. 5].

Morrison v. Nova Scotia (Attorney General) et al., [2012] N.S.R.(2d) Uned. 97; 2012 NSSC 136, refd to. [para. 6].

Gagne v. Silcorp Ltd. (1998), 113 O.A.C. 299; 167 D.L.R.(4th) 325; 1998 CarswellOnt 4045 (C.A.), refd to. [para. 15].

Parsons et al. v. Canadian Red Cross Society et al., [2000] O.T.C. 968; 49 O.R.(3d) 281 (Sup. Ct.), refd to. [para. 16].

Smith Estate et al. v. National Money Mart Co. et al. (2011), 276 O.A.C. 237; 2011 ONCA 233, refd to. [para. 18].

Bird et al. v. Zurich Indemnity Co. of Canada (1998), 62 O.T.C. 71; 160 D.L.R.(4th) 186 (Gen. Div.), refd to. [para. 19].

Cannon v. Funds for Canada Foundation et al., [2013] O.T.C. Uned. 7686; 2013 ONSC 7686, refd to. [para. 20].

Baker Estate et al. v. Sony BMG Music (Canada) Inc. et al., [2011] O.T.C. Uned. 7105; 2011 ONSC 7105, refd to. [para. 21].

Helm v. Toronto Hydro-Electric System Ltd., [2012] O.T.C. Uned. 2602; 2012 ONSC 2602, refd to. [para. 21].

Rideout v. Health Labrador Corp. (2007), 270 Nfld. & P.E.I.R. 90; 822 A.P.R. 90; 2007 NLTD 150, refd to. [para. 22].

Doucette v. Eastern Regional Integrated Health Authority (2010), 294 Nfld. & P.E.I.R. 13; 908 A.P.R. 13; 2010 NLTD 29, refd to. [para. 22].

Manuge v. Canada (2013), 430 F.T.R. 125; 2013 FC 341, refd to. [para. 23].

Killough et al. v. Canadian Red Cross Society et al., [2007] B.C.T.C. Uned. 524; 2007 BCSC 941, refd to. [para. 25].

Buote Estate v. Canada, 2014 FC 773, refd to. [para. 28].

Sparvier et al. v. Canada (Attorney General) (2006), 290 Sask.R. 111; 2006 SKQB 533, affd. (2007), 293 Sask.R. 54; 397 W.A.C. 54; 2007 SKCA 37, appld. [para. 47].

Murphy v. Mutual of Omaha Insurance Co., [2000] B.C.T.C. 764; 2000 BCSC 1510, refd to. [para. 50].

MacQueen et al. v. Nova Scotia et al., [2012] N.S.R.(2d) Uned. 346; 2012 NSSC 461, agreed with [para. 51].

Baxter et al. v. Canada (Attorney General) et al., [2006] O.T.C. 1346; 83 O.R.(3d) 481 (Sup. Ct.), refd to. [para. 54].

White v. Canada (Attorney General) et al., [2006] B.C.T.C. 561; 2006 BCSC 561, refd to. [para. 54].

Broome et al. v. Prince Edward Island (2009), 282 Nfld. & P.E.I.R. 61; 868 A.P.R. 61; 2009 PECA 1, affd. (2010), 400 N.R. 148; 297 Nfld. & P.E.I.R. 24; 918 A.P.R. 24; 2010 SCC 11, refd to. [para. 58].

Counsel:

Raymond Wagner, Q.C., and Michael Dull, for the plaintiffs;

Catherine Lunn, for the defendant (AGNS), watching brief only;

No one appearing for the defendant (The Nova Scotia Home for Colored Children).

This motion was heard at Halifax, N.S., on September 17 and October 6, 2014, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following decision on October 16, 2014.