“With respect to a claim for a fee premium, this court laid down the following principles in Christian Brothers of Ireland in Canada (Re) (2003), 2003 CanLII 18327 (ON CA), 68 O.R. (3d) 1 (C.A.):
Many factors may bear on whether lawyers are entitled to a premium over their hourly rates. These factors include the difficulty and complexity of the case, the responsibility assumed by the lawyer, the amount in issue, the importance of the case to the client, the skill shown by the lawyer, the result achieved, the client’s ability to pay and the lawyer’s corresponding financial risk… The judge or officer assessing or approving a lawyer’s account must, in exercising discretion, take into account and weigh these factors in deciding whether to award a premium” (at para. 17).
See also: Ontario (Ministry of Transportation) v. Tripp (1999), 1999 CanLII 3762 (ON CA), 123 O.A.C. 278.
As reconfirmed by the Court of Appeal in Wu Estate v. Zurich Insurance Co., (2006), 2006 CanLII 16344 (ON CA), 268 D.L.R. (4th) 670 (Ont. C.A.), leave to appeal to the Supreme Court of Canada dismissed, [2006] S.C.C.A. No. 289, the duty of the court in considering whether or not to approve a settlement reached on behalf of a party under a disability is to protect the party and to ensure that the settlement is in his or her best interests (at para. 10).
It goes without saying that any premium paid to counsel who helped a plaintiff in a tort action achieve a resolution of his or her claim will reduce the funds available to meet the plaintiff’s needs and otherwise compensate him or her for damages sustained. However, as important as those interests are, they must be balanced against the need to provide fair compensation for lawyers who assist in achieving the result.
Ensuring, to the extent possible, that the lawyers’ contribution to the result is appropriately recognized is important for several reasons. First, lawyers are entitled to fair compensation for services rendered and to reimbursement of their cost outlays. Second, lawyers who are willing to assume carriage of files in circumstances where the result is not certain and where unpaid fees and paid disbursements may have to be financed over a long period of time contribute to access to justice: Christian Brothers, at para. 21.”