Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J A N U A R Y 2 0 1 7 49 has advised clients on third-party fund- ing agreements. At the same time, he suggests that courts should continue to have an oversight role when a litigation funding deal is part of the proceeding. Luciana Brasil, a partner at Branch MacMaster LLP in Vancouver who spe- cializes in class actions, agrees that out- side funding is going to be more widely used. She adds that courts have a role in ensuring that the rate of return in any agreement is reasonable, similar to fees for counsel in class actions. One of the more recent entrants to this field in Canada is Bentham IMF Capital Ltd., an Australian company that opened an office in Toronto a year ago. The company has been publicly traded in Australia for more than 15 years with a focus on funding commer- cial litigation. Tania Sulan, chief invest- ment officer for its Canadian oper- ations, agrees that for lawyers in Com- monwealth countries, there may be an initial instinct to be wary of outside funding. "Profiting from someone else's lawsuit has always been an awkward topic," says Sulan. At the same time, she stresses that there is a significant access to justice benefit when an outside party is able to fund litigation where there is a meritorious claim but limited resources. "We do a hefty due diligence before we enter. We are never in a case to extract an early settlement," she says. Entering into a third-party funding agreement is now being embraced more widely by experienced litigators across the country. "Class actions are very expensive," says Reynold Robertson, partner at Robertson Stromberg LLP in Saskatoon. "It is now beyond the cap- acity of most firms to self fund. That is a huge risk," he states. Robertson is coun- sel in a class action lawsuit initiated in 2010, which received court approval last August for a third-party funding deal in Schneider v Royal Crown Gold Reserve Inc. "Even large firms in Ontario are not doing it on their own. They have to get funding," says Robertson. To date, there have been decisions in seven provinces related to litigation funding agreements and fees paid out as part of these arrangements. Much of the legal analysis begins with a decision of the Ontario Court of Appeal in 2002, which concluded that it was not neces- sary to wait for the province to amend its Champerty Act (enacted in 1897) to conclude that contingency fees for litigation were permissible. "Advantages to the administration of justice from permitting properly regulated contingency fee agreements in the form of increased access to justice are compelling," THE COMPANIES DOING THIS ARE VERY SOPHISTICATED. THIS IS WHAT THEY DO FOR A LIVING. THEY ARE NOT FISHING FOR CASES. HOWARD BORLACK, McCague Borlack LLP What do your clients need? The means to move on. Guaranteed ™ . Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES ntitled-5 1 2016-10-25 3:42 PM Each issue is packed with unbiased in-depth case analyses, valuable strategies, expert insights and a wealth of information that readers to prepare for cases and manage their practice. Your subscription includes: • 11 issues of print and digital editions • Access to digital archives • Canadian Legal Newswire - Weekly e-newsletter delivered to your inbox The ultimate source for today's legal profession! Subscribe to Canadian Lawyer today for only $99*! Order online at: bitly.com/CanLawyer-Subscription 416.609.3800 I 1.800.387.5164 Access a free preview at: bitly.com/CanLawyer-FreePreview @canlawmag *Plus applicable taxes ntitled-7 1 2016-12-14 2:02 PM

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