In the case of 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10 the Supreme Court of Canada looked at the issue of litigation funding, where outside parties pay certain parts of litigation expenses, and sometimes costs, in exchange for a percentage of any winnings. While the case was focused on a technical aspect of the CCAA framework, the court had this to say at paragraph 95:
[95]Building on jurisprudence holding that contingency fee arrangements are not champertous where they are not motivated by an improper purpose (e.g., McIntyre Estate), lower courts have increasingly come to recognize that litigation funding agreements are also not per se champertous. This development has been focussed within class action proceedings, where it arose as a response to barriers like adverse cost awards, which were stymieing litigants’ access to justice (see Dugal, at para. 33; Marcotte v. Banque de Montréal, 2015 QCCS 1915, at paras. 43-44 (CanLII); Houle v. St. Jude Medical Inc., 2017 ONSC 5129, 9 C.P.C. (8th) 321, at para. 52, aff’d 2018 ONSC 6352, 429 D.L.R. (4th) 739 (Div. Ct.); see also Stanway v. Wyeth, 2013 BCSC 1585, 56 B.C.L.R. (5th) 192, at para. 13). The jurisprudence on the approval of third party litigation funding agreements in the class action context — and indeed, the parameters of their legality generally — is still evolving, and no party before this Court has invited us to evaluate it.
Litigation funding is a developing area in Canada, and Alberta, although for Plaintiff side trial lawyers, it should be something that real thought is put into.
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The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.
