Law Times

Law Times • sepTember 4, 2017 Page 11 www.lawtimesnews.com Arrangement examined BY JUDY VAN RHIJN For Law Times T he newest player in the Ontario litigation funding market has just presented its unique fund- ing arrangement for approval in a class action for the first time. In the case of Houle v. St Jude Medi- cal Inc, which addresses the marketing of deficient defibrillators, the third-party funder, Bentham Canada, has put its arrangement on the Ontario Superior Court's table. "This is an evolution. Previous case law in the class action realm on litiga- tion funding considered an arrangement where the lawyers were acting on a full contingency basis with a private funder providing some disbursements and some coverage for adverse costs," states Tania Sulan, the Toronto-based chief investment officer of Bentham Canada, the subsidiary of Australian-based IMF Bentham. "We have agreed to pay a portion of the lawyer's fee so the lawyer operates on a partial contingency fee. We pay all the dis- bursements, rather than a capped amount, and court-ordered costs," she says. The motion for approval was argued in August 2017, before Justice Paul Perell. His decision is now under reserve. "Justice Perell was the right judge to be faced with an innovative agreement," says David Lederman of Goodmans LLP of Toronto, who represented Bentham. "He is well versed on the issues and was ready to raise concerns and ques- tions." Lederman advises that Bentham has also sought approval of its funding ar- rangement in private litigation from the federal court at the end of July. That decision is also under reserve. "It was a novel application," he says. "The federal court has not considered approval of a litigation funding agree- ment before. "One thing that is somewhat novel in this instance is that some of the funding is going to class counsel as the case is go- ing forward," Lederman says. "In the ordinary course, class counsel carries it forward and then waits until the end of the day to see if it can recoup fees and disbursements. "Bentham is funding a portion of the work in progress in fees. That is unique. It hasn't happened before." The defendants were represented by McCarthy Tétrault LLP, which did not oppose the funding per se but had con- cerns over some of the terms of the ar- rangement. The firm did not responded to re- FOCUS Samantha Schreiber says a recent motion for approval over class action funding at the Ontario Superior Court was important enough to live-tweet. See Live-tweeting, page 12 © 2017 Thomson Reuters Canada Limited 00245CH-A88804-CE FIND OUT AT THE 2017 EMERGING LEGAL TECHNOLOGY FORUM Accelerating Innovation Across the Profession How will AI and Blockchain impact the practice of law? September 21, 2017 9:00 a.m. to 5:00 p.m. Thomson Reuters Customer Centre 333 Bay Street, Toronto This year's program examines the growing prominence of chat bots and robot lawyers in the latest wave of technological innovation. Seating is limited. Register today at thomsonreuters.ca/legaltechevent Follow us #TRLegalTech @lawmadecom Presented by Lexpert, the prestigious Rising Stars Awards Gala honours winners from across Canada and welcomes law firm and in-house leaders and distinguished guests to celebrate and network with others who are at the top of the legal profession. GALA DINNER AND AWARDS PRESENTATION Honouring Canada's Leading Lawyers Under 40 – from law firms and in–house – this event will pay tribute to the Rising Stars of the legal community EMCEE Jean Cumming, Editor-in-Chief, Lexpert THE FAIRMONT ROYAL YORK HOTEL, TORONTO Thursday, November 16, 2017 5:30 p.m. Cocktail Reception 7:00 p.m. Gala Dinner and Awards Presentation 9:30 p.m. After Party Dress: Business attire LEXPERT.CA/RISING-STARS To purchase tickets or to sponsor the event, contact: MediaSolutions.Sales@thomsonreuters.com Founding Partner Bronze Sponsor Hosted in Partnership with Untitled-7 1 2017-08-31 11:31 AM

• Cover