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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 51 related to the third-party funding arrangements are appropriate, such as the decision in Schneider, by Chief Jus- tice Martel Popescul of the Court of Queen's Bench in Saskatchewan. That province is now a "costs jurisdiction" for class actions, as is Ontario. Popescul found the terms of the litigation fund- ing agreement to be reasonable and also that it need not be disclosed. "The exist- ence of the LFA has no bearing, substan- tively or procedurally on the defendants or the third parties. From whose pocket an adverse cost award is paid is of no consequence to the defendants and the third parties," wrote the judge. The information that a plaintiff can seek about a defendant's financial resources or insurance coverage is lim- ited, says Robertson, so it is only fair that third-party funding agreements be confidential. "You don't want to tele- graph to your opponent how well fund- ed you are. That is because they can motion you to death," he says. While litigation funding deals are not necessarily a bad thing, Jilesen says courts should scrutinize how high the percentage return might be for the outside party and access to documents in the litigation, even with a deemed undertaking. "I remain concerned about litigation funders and access to information about the defendant in the documents," says Jilesen. She adds that this includes the possibility of the use of information disclosed in one action in another case against the same defendant. Jacqueline Horvat, a commercial litigator and partner at Spark LLP in Toronto, says there are ways to address these concerns to the satisfaction of both parties. "You can designate docu- ments as level A and level B" in terms of access by the funder, she explains, along with a deemed undertaking. "As long as the lawyers are open and creative," these issues can be resolved, says Horvat, who also teaches legal ethics at the University of Windsor law school. Another concern that may arise with an outside source of funding is when there is a settlement offer. "The funder should not be the one dictating whether to accept the offer," says Brasil. For its part, Bentham is not seeking to overstep its role in any litigation proceed- ing, says Sulan. "We are a strategic sound- ing board. We want to be consulted at key points. Ultimately, though, it is the client's case," says Sulan. While much of the third-party fund- ing litigation so far has been in class actions, other forms of commercial liti- gation are likely to be a growth area. In June 2015, Ontario Superior Court Justice Thomas McEwan concluded in Schenk vs. Valeant Pharmaceuticals that third-party funding was permissible in single-party commercial litigation, although he did not approve an arrange- ment that could have seen the funder in that case receive more than 50 per cent of any award or settlement (the terms were revised and later accepted by the court). Proceedings under the Companies' Creditors Arrangement Act may also be an appropriate forum for outside fund- ing, says Horvat. "There are often groups of creditors who can't afford to fight for their rights. This would be an example of access to justice," she says. Order your copy today. Visit www.carswell.com or call 1.800.387.5164 for a 30-day, no risk evaluation INCLUDES BRITISH COLUMBIA, NORTHWEST TERRITORIES, NUNAVUT AND YUKON. 2017 British Columbia Legal Telephone Directory Get quick access to: • Courts • Judges and court officials • Law related services and organizations • Federal and provincial government departments • Boards and commissions • Notaries • Shorthand Reporters • Land surveyors • Paralegals NEW EDITION Spiralbound • October 2016 $47.50* • L7798-5931 Multiple copy discounts available *Plus applicable taxes and shipping & handling (Prices subject to change without notice) ntitled-7 1 2016-12-14 1:59 PM benthamimf.ca INTERNATIONAL LITIGATION FUNDING we invest in your success ntitled-4 1 2016-12-12 8:23 AM

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