When a law firm engaged on a class action splits up, is the representative plaintiff entitled to decide which of the resulting new firms to retain? In Fantle v. Transamerica Life Canada, 2009 ONCA 377, decided May 7, 2009, the court held that the representative plaintiff is entitled to select, and indeed is responsible for selecting, class counsel. The criteria to be considered when the choice of counsel properly comes before the supervisory court for review are: competence of counsel; whether the choice was based on any improper considerations; and whether the choice resulted in any prejudice to the class.
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In Poultney v. Wilson, [2009] O.J. No. 704 (S.C.J.), the court said, “No”. When a judge has made a costs award based on materials presented by counsel, an assessment under the Solicitor’s Act of the bill of costs presented by the solicitor is not appropriate in the absence of special circumstances or reasons for the court to exercise its inherent jurisdiction.
In Jean Estate v. Wires Jolley LLP, 2009 ONCA 339, released April 29, the Court of Appeal held that a solicitor and his or her client may agree to have an arbitrator, as opposed to a Superior Court judge, hear a contingency fee dispute. However, public policy prevents the parties from contracting out of the statutory protections contained in the Solicitors Act and any arbitration must be conducted in accordance with them.