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Login to watch this video if you have a subscription. Learn more about subscriptions.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:
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).
Naomi Loewith is the Director of Strategic Partnerships (Canada), and Investment Manager & Legal Counsel at Omni Bridgeway. Omni Bridgeway is a global leader in dispute finance, providing funding and management of disputes, and international enforcement of judgments and awards on all continents.
Naomi is responsible for nurturing and building key relationships with corporate clients, law firms and other industry partners. Naomi also serves as an Investment Manager and Legal Counsel. In that role, she assesses cases for funding, and acts as a sounding board for claimants and their counsel at all stages of their litigation. Naomi obtained a J.D. from Harvard Law School, and clerked for Justice Morris Fish at the Supreme Court of Canada.
Prior to joining Omni Bridgeway, Naomi was a litigator at Lenczner Slaght LLP. In that role, Naomi conducted trials and appeals before all levels of courts and regulatory bodies. Naomi is the Vice-Chair of the Advocates’ Society In-House Counsel Practice Committee, and is the co-chair of Ontario’s Harvard Law School Women’s Alliance. Naomi also serves as a parent mentor for the Bob Rumball Center for the Deaf and as a Board Member for the Paul Penna Downtown Jewish Day School.
Christina is a partner in the Advisory Research group in Toronto, which provides opinions on complex or novel legal issues to clients and lawyers within the Firm. In her practice, Christina provides advice to corporate clients faced with potential litigation, and works closely with litigators to provide strategic support to clients already engaged in litigation. Drawing on her previous experience as a litigator, Christina develops legal arguments and pleadings, and advises on contractual or statutory interpretation, unclaimed property, conflict of laws, and numerous other corporate and commercial matters. She is regularly called upon to prepare written materials for appeals to the Court of Appeal and Supreme Court of Canada and has played a significant role in cases involving professional negligence, complex commercial disputes and insurance matters. Christina is the Chair of the Firm’s Student Committee and is also responsible for the training and development of the research and writing skills of the articling and summer students in the Firm’s Toronto office.
Christina is a frequent publisher and was cited by the Supreme Court of Canada in CIBC v. Green, the securities class action trilogy, for her work on limitation periods. Christina also maintains Dentons’ Limitations Law Blog, which provides updates on key developments on laws involving limitation periods in Ontario.
Prior to joining Dentons, Christina clerked at the Federal Court of Appeal for the Honourable Mr. Justice Brian Malone and practiced civil litigation at another national law firm in Toronto. Christina also obtained an LL.M. at Osgoode Hall, focusing her research on conflict of laws.
Christina brings her prior experience as a litigator and judicial law clerk to her practice in order to produce practical answers designed to assist the Firm’s clients and advocate for their interests.
Lauren is a Partner in the Osler litigation group and Co-Chair of the International Commercial Arbitration and ADR Group. Her corporate litigation practice has particular emphasis on class action defence, securities litigation, regulatory investigations and international commercial arbitration. She also regularly advises emerging and high growth companies facing unique issues in the technology space.
Lauren represents various companies facing class actions in a variety of circumstances, including claims of environmental property damages, securities, product liability and pensions and benefits. She has experience at all stages of a class proceeding, including certification motions, various procedural motions, a large common issues trial and appeal, and costs proceedings.
Lauren’s securities litigation practice involves expedited hearings before the Ontario Securities Commission, oppression claims and corporate governance matters. In the regulatory sphere, Lauren has experience with securities regulatory investigations involving multiple Canadian jurisdictions, and also in the cross-border context.
Lauren's international commercial arbitration work has been primarily focused on the mining and resource industries. Lauren has experience with arbitrations under a variety of procedural rules, including as well as in ad hoc arbitrations.
Lauren has appeared at all levels of court in Ontario, and has spent some time with Osler’s Calgary office, during which time she appeared before the Alberta courts.
Margaret brings to her clients 28 years of experience in successfully prosecuting and resolving Class Actions and Complex Civil Disputes. She is called to the Bar in both Ontario and Alberta.
Margaret is recognized as a leading lawyer in the field of class actions, and has acted as class counsel on a number of prominent cases in this field. She is regularly sought out to lead on class actions, or to partner with other firms who need additional bench strength, and lawyers often refer their own clients’ class actions to her to prosecute. Margaret’s skill at focusing on key issues and her established credibility before the courts is greatly valued by her clients and referring lawyers. In addition, Margaret is a skilled mediator who can help litigants reach sensible solutions to their disputes. Margaret is an adjunct professor of law at Queen’s University, where she teaches Class Action Practice and Procedure.
Margaret focuses her practice on achieving quality results for her clients, creatively, efficiently and, importantly, in a cost-effective manner. She has broad experience in solving all manner of commercial conflicts, including contract disputes, insurance and professional liability claims, shareholder disputes, and other commercial controversies. Margaret is also recognized for her particularly strong advocacy before the Court of Appeal.
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