Class Action Settlement Take-Up Significant For Fee Approvals: Lavier V Mytravel Canada Holdings Inc

On February 14, 2013, the Ontario Court of Appeal released its decision in Lavier v MyTravel Canada Holidays Inc, which deals with the approval of class counsel fees in a settled class proceeding.¹ The decision provides some useful guidance regarding the structuring of class action settlements. Furthermore, the court's analysis indicates that where few class members participate in the settlement, the objective of incentivizing class counsel to achieve access to justice for wronged persons who would not otherwise obtain redress is diminished. Accordingly, a lesser fee award may be appropriate.

The claim in Lavier alleged that the defendant had knowingly sent travellers to resorts in the Dominican Republic that were experiencing an outbreak of norovirus. The court-approved settlement required the defendant to make a fund of $2.25 million available to compensate class members who could demonstrate they had been affected by the outbreak. However, any amount remaining