Ontario Superior Court has reserved its decision in a court challenge of the $510 million in lawyers’ fees paid out to lawyers who landed a historic $10-billion settlement in the Robinson Huron Treaty annuities claim.
Garden River First Nation Chief Karen Bell and Atikameksheng Anishnawbek Chief Craig Nootchtai brought the case to court on behalf of their First Nations Tuesday, arguing that the legal fees need to be reassessed after the Robinson Huron Litigation Fund (RHTLF) overpaid lawyers by more than $400 million.
The case was heard in a packed Toronto courtroom, with upwards of 1,000 people at one point watching the proceedings unfold remotely.
A $10-billion settlement for 21 First Nations in Robinson Huron Treaty territory was finalized with Canada and Ontario earlier this year after a lengthy court battle over annual treaty payments, which have remained frozen at $4 per person since 1875.
Proceeds from the settlement are expected to be distributed to First Nations Aug. 9.
Chiefs and trustees voted in favour of paying the $510-million lawyers’ bill earlier this year. The law firm that landed the landmark settlement, Nahwegahbow Corbiere Genoodmagejig Barristers & Solicitors in Rama, Ont., agreed to set aside $255 million of those legal fees for advocacy work in the treaty territory, including future litigation.
Representing Bell and Nootchtai in court Tuesday, lawyer Michael Rosenberg argued that the litigation management committee of the RHTLF failed to obtain an independent legal opinion on the “largest contingency fee in legal history” — with chiefs and trustees being pressured to approve the lawyers’ bill amid concerns that the distribution of settlement proceeds would be delayed.
Rosenberg said that legal fees were approved despite attempts by Nootchtai to have the fees reviewed independently. He also argued that the only advice on the legal fees came from the lawyers litigating the annuities claim, and that outside advice on the fees was discouraged by the same lawyers who were about to receive them.
The fair way to calculate the lawyers’ bill, Rosenberg told the court, would have been to take a base fee of $11 million and multiply that by four — for a total of $44 million — “at the very highest end,” under rules for lawyers involved in “megafund” cases.
In all, Nootchtai and Bell believe the lawyers’ fee was overcharged by some $466 million.
Peter Wardle, lawyer for the litigation management committee of the RHTLF, told the court that Nootchtai brought a letter to a May 14 meeting of chiefs and trustees that was critical of the proposal before introducing a motion to assess the legal fees. Majority of chiefs and trustees didn’t feel the legal advice was necessary, Wardle added, with chiefs-in-assembly voting in favour of accepting the lawyers’ fee proposal.
Wardle also argued that Bell and Nootchtai cannot seek an assessment of the fees because they’re not liable for the entire bill, adding that the lawyers were paid for by the trust, and not the First Nations. On top of that, Wardle contended the two chiefs didn’t have standing to bring the matter before the courts as individuals.
Ontario Superior Court Justice Jana Steele reserved her decision, advising the court she was hopeful the distribution of settlement funds would not be delayed by her doing so.
No timeline was given for a ruling in the case.
