The (Not So) Good Fight? Fee Splitting in the Visa/MasterCard Class Action: The Merchant Law Group, Justice Perell, and the Ontario Court of Appeal

Abstract

The Ontario Court of Appeal recently upheld a decision of the Ontario Superior Court to reduce the fee payable to class counsel because of an arrangement class counsel had made to pay off another class action firm that had filed copycat actions. The Court of Appeal held that the costs of fighting and settling carriage motions are business expenses that class counsel should bear, not the plaintiff class members.

The decision leaves open the larger issue of multi-jurisdictional class actions filed in multiple provinces. Canada needs a working multi-jurisdictional class action system. Progress toward this goal has been slow, although parts of a solution are now in place. Provincial legislatures need to heed the Supreme Court's 2015 call to establish more effective methods for managing jurisdictional disputes.