Litigation Funding for Commercial Claims in Canada

A series of recent decisions have opened the door to funding of commercial litigation in Canada. Litigation funding is long-established in Australia, the U.K. and the U.S. In the wake of Schenk v. Valeant (2015) and decisions that build on its reasoning, clients and counsel are exploring it as a way of advancing commercial litigation, including breach of contract, oppression, intellectual property, breach of duty, securities, insolvency and other business disputes.

Clients see litigation funding as a means of advancing claims, while sharing or offsetting the risk and cost. Litigators can use funding to attract clients who could not otherwise afford their services, to help large clients manage cost and risk, and to offer creative fee arrangements, all while ensuring that meritorious cases are properly resourced through to trial.

The panelists include litigators from both large and small firms, and counsel for a litigation funder. They will discuss what litigation funding is and how it works in practice, what the courts have had to say about, and why counsel are increasingly thinking about funding now.

Our agenda will cover:

• Updates of recent case law.
• The mechanics of a funding agreement, including ensuring that the litigation funder’s terms are fair and adequately deal with any conflicts of interest that may arise.
• Why litigation funding permits lawyers to take on cases they might not otherwise be able to accept and how this might help with a law firm’s succession planning.
• How litigation funding provides access to justice for those who cannot properly fund their litigation.
• How litigation funding enables corporate clients to more effectively manage cost and risk, while generating more efficient and reliable revenue sources for law firms.
• Professional and ethical issues, including the doctrines of maintenance and champerty, control and disclosure
• Issues surrounding privilege with respect to the exchange of documents.
• The mechanics of a funding agreement, including ensuring that the litigation funder’s terms are fair and adequately deal with any conflicts of interest that may arise.

This will cover conflicts of interests between clients and counsel; requirements related to fees and billing; explaining costs and risks to clients; and alternative fee arrangements. The mechanics would be: non-recourse funding; risk-sharing with the law firm or with the clients; and who bears the duty to pay any court-ordered costs. Why litigation funding permits lawyers to take on cases they might not otherwise be able to accept and how this might help with a law firm’s succession planning.

This topic will be about practice management – accepting retainers, client expectations and objectives, and file supervision. The succession planning portion relates to assigning files to appropriate lawyer levels, and suitable supervision.

How litigation funding provides access to justice for those who cannot properly fund their litigation.

How litigation funding enables corporate clients to more effectively manage cost and risk, while generating more efficient and reliable revenue sources for law firms.

This touches on the “financial obligations to 3rd parties” of a lawyer, risk management and client service. Professional and ethical issues, including the doctrines of maintenance and champerty, control and disclosure.

Issues surrounding privilege with respect to the exchange of documents = All Speakers.

Updates of recent case law:

The recent case law are (1) privilege of litigation funding agreements (addressed in both Houle v. St. Jude and Seedlings v. Pfizer); (2) whether court approval is required where the court does not already have a supervisory role (Seedlings); (3) when an agreement can be terminated (Houle); and (4) what level of return for the funder the court can approve at the outset of litigation (Houle).

Presenters:

Naomi Loewith Christina Porretta Lauren Tomasich Margaret Waddell