Lawyers appeal decision that slashed legal fees from $510M to $40M in treaty case

The legal team that secured a $10 billion settlement for First Nations under the Robinson Huron Treaty Litigation Fund is appealing a decision that reduced their legal fees by $470 million. (File)

The legal team that secured a $10 billion settlement for First Nations under the Robinson Huron Treaty Litigation Fund is appealing a decision that reduced their legal fees by $470 million.

The notice of appeal was filed Nov. 21.

The $510 million was based on a five per cent contingency fee and was negotiated long before the $10 billion settlement was reached. It was, by far, the largest legal fee ever awarded in Canada.

The team ended up donating half of the fee back to the First Nations.

The Robinson Huron Treaty Litigation Fund is a trust that represents 21 participating First Nations in northern Ontario with about 40,000 members who are beneficiaries under the Robinson Huron Treaty. However, two of the First Nations were unhappy with the size of the fee and appealed.

In a decision released Oct. 28, Superior Court Justice Frederick L. Myers reduced the fee to a total of $40 million.

‘Not a lottery ticket’

While many cases are conducted on the basis of contingency fees as high as 30 per cent, Myers ruled that lawyers are not entitled “to a windfall of huge fees in an amount that is unrelated to the value of the professional services rendered.”

“A lawyer’s professional retainer is not a lottery ticket offering a bonus prize of generational wealth to the lawyers if the clients hit the jackpot and win a mega-award.”

He reduced the amount to $40 million, including $17 million that had already been paid.

In a statement, Brian Gover of Stockwoods Barristers, who is representing the legal team in the appeal, said the appeal argues “that the Superior Court of Ontario decision was marred by erroneous findings and unwarranted assumptions.”

“They maintain that the decision also calls into question the continuing viability of partial contingency fee agreements — arrangements that can play a vital role in providing access to justice for those with limited resources,” the statement said.

The appeal also argues that the decision is “paternalistic” and assumes that the First Nations didn’t realize the implications of the fee agreement.

“The appellants reject the notion that the Litigation Fund’s trustees were naive and ill-informed — a conclusion that echoes centuries of paternalistic attitudes toward First Nations,” the statement said.

“The chiefs and trustees involved in reaching the fee agreement were experienced negotiators who drove a hard bargain and were well aware of what they were doing over the entire course of the litigation.”

The lawyers have not sought a stay to prevent the funds returned to the litigation fund from being dealt with as proceeds of the settlement reached with Ontario and Canada.