Arbitrator Focused On Risk Incurred By Counsel And Degree Of Success Achieved

     Above:  Ever-vigilant Canadian mounted policeman.  ca. 1917.  Library of Congress.

     Shawn Irving and Catherine Gleason-Mercier of the Canadian law firm Osler, Hoskin & Harcourt LLP reported on September 30, 2014, that an arbitrator has awarded $10.45 M to class counsel in Fulawka v. The Bank of Nova Scotia.  This very significant class action involved a class certified in 2010, consisting of approximately 14,000 persons, and suing to recover overtime wage claims.

     Interestingly, Canada has a Class Proceedings Act, 1992, providing a procedure for calculating a multiplier (“multiplicateur”) and the base fee (“honoraires de base”).

     Here, the parties took a creative approach, resorting to an arbitrator to address the issues remaining after a merits decision, one of which was the amount of class counsels’ fees.

      Despite defense objections to duplicative work, the arbitrator only reduced the base fee by 3%.  Focusing on the risk incurred by class counsel in undertaking novel and large-scale litigation, and the significant degree of success, the arbitrator determined the multiplier to be 2.75, resulting in fees of $10.45 M. 

      While employee class actions may be hobbled in the United States by arbitration clauses and class action waivers, Fulawka v. The Bank of Nova Scotia is evidence of a successful class action across the border.