This case went to trial before Mr. Justice Pitfield of the Supreme Court of British Columbia in June 2009.
Mr. Justice Pitfield released his judgment on September 29, 2009.
The Plaintiffs were partially successful in the action. The Judge ruled that certain expenses paid from the Plan Fund were unlawful. The BDC has already repaid the Fund the expenses in question. The Judge also held that certain amendments to the Plan entitling the BDC to surplus during the Plan’s currency were in breach of trust and, consequently, void.
The Judge also ruled that the BDC did not breach its fiduciary duty to retirees when it failed to provide them with benefits commensurate with those enjoyed by active members during the years the Plan was non-contributory. Retirees and other class members, therefore, will receive no compensation for the time Plan was in surplus and the active members enjoyed a contribution holiday.
A full copy of Mr. Justice Pitfield’s Reasons can be found at Court Documents
A certified class proceeding takes place in two stages. The issue of fees can arise at the end of each stage.
Stage one is the common issues trial during which the issues common to all class members as set out in the Statement of Claim are resolved. If the common issues are resolved in favour of the class, the plaintiffs’ lawyers (called class counsel) will be awarded a class counsel fee. This fee forms a first charge on any amounts awarded to class members. In this lawsuit, Klein Lawyers, has signed a retainer agreement with the representative plaintiff for fees of 25% of any settlement or judgment. This fee is subject to court approval. If we are unsuccessful at the common issues trial, then this lawsuit will be at an end (subject to appeals) and no fees will be owing [25% of zero is zero].
British Columbia has “no costs” class action legislation. This means that even if the plaintiffs are unsuccessful, the defendant will not be awarded the “costs” of this action. Class members will not be held responsible for the defendant’s costs in this lawsuit.
If stage one ends successfully, either through settlement or trial, then a mechanism is put in place for individual class members to make claims against the settlement fund or judgment amount. The individual claims process is stage two. The procedures for making individual claims differ from class proceeding to class proceeding and are determined during stage one.
Depending on the claims procedure, a class member who pursues an unsuccessful claim in the second stage may be responsible for the costs of the defendant in opposing the individual claim. Some class members hire their own lawyers to help them file their individual claims. If they do, they are responsible to those lawyers for fees and disbursements as agreed between themselves and their lawyers.
Class members can wait until after stage one is complete, and the process for stage two is in place, to decide whether they want to file an individual claim for compensation. A class member does not incur the risk of costs to the defendant unless he or she files a claim in stage two — and then only if the claim is unsuccessful and if claims process provides for the recovery of costs by the defendant.
Please note that non-residents cannot wait until the end of stage one to decide if they want to opt-in to the class action. Non-residents must opt-into the class action by the deadline established by the court if they want to be class members and to have the possibility of filing a claim in the second stage. To read more about opting in, refer to the Notice of Certification (201 KB) .
“The negotiations were conducted by plaintiffs’ counsel with experience in class proceedings.”
“I am satisfied it is apparent from the material, which is complicated, and, I might say very well organized...”
“Plaintiff’s counsel are senior members of the bar who have extensive experience in personal injury litigation and class actions..”
“Mr. Klein is experienced and able in relation to class proceedings. Over time he has acquired expertise that permits him to make a valuable contribution...”
“The lead class counsel is experienced and has been recognized by the courts in approving settlements in other class actions.”
“Counsel for the plaintiffs in the various jurisdictions appear to be experienced in class proceedings, and to be recognized as skilled litigators.”
“…Plaintiff’s counsel retained the British Columbia law firm of Klein Lawyers to assist in the litigation. That firm has extensive experience...”
“Klein Lawyers is a litigation firm focusing on class actions. The firm is based in Vancouver but also has a Toronto office.”
“The proposed Class Counsel have excellent qualifications…”
“Mr. Klein of Klein Lawyers has over 20 years of experience in the field of class action litigation and has appeared as plaintiffs’ counsel in over 25 certified class actions...”
“Class counsel, Klein Lawyers LLP and Kim Orr Barristers P.C., are highly experienced in class action litigation. Both firms have practiced in the specialized area of class action litigation for over 20 years”
“British Columbia class counsel took on this case on a contingency basis, and faced a real risk of not being paid at all for their services.”
“Class counsel pursued this litigation to completion on their own rather than with a consortium of counsel from various provinces.”
“Klein Lawyers has continuously posted updates about the case on its website during the litigation, and has posted the court decisions...”
“There is little doubt that the lawyers of the firm expended a great deal of time in prosecuting the action, in negotiating a settlement...”
“…Class counsel undertook an extensive communication plan to advise potential class members of the proposed settlement and to advise them of the...”