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Settlement - Modification

Welsh v Ontario (Ont CA, 2019)

Here the court comments on the procedure to be used when the parties need to modify a settlement, in this case over the amount of class action fees:
[11] Given the motion judge’s concerns, the appropriate course of action would have been for him to allow the parties an opportunity to make submissions and, if they desired to do so, agree to change the terms of the settlement in order to address those concerns and obtain approval of class counsel’s fees. However, he was not permitted to modify unilaterally the terms of a negotiated settlement without the consent of the parties. See: Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 1598, at para. 10; Ford v. F. Hoffmann-La Roche Ltd. (2005) 2005 CanLII 8751 (ON SC), 74 O.R. (3d) 758, at para. 127.

[12] There is no question that it was within the motion judge’s discretion to express concerns about the amount of class counsel’s fees, and to reduce the amount of class counsel’s fees and make them proportionate to the settlement result achieved. However, the motion judge erred in law by imposing the donation term that altered the settlement agreement.


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