Martell v Nova Scotia (Attorney General)

Martell v Nova Scotia (Attorney General) Court Supreme Court Date 2026-02-02 Citation 2026 NSSC 36 Docket Hfx No. 447198 Judge/Registrar/Adjudicator Rosinski, Peter P. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Martell v Nova Scotia (Attorney General), 2026 NSSC 36 Date: 20260202 Docket: Hfx No. 447198 Registry: Halifax Between: Richard Robert Martell and Michael Harry Gerald Perrier Plaintiffs v. The Attorney General of Nova Scotia, representing His Majesty the King in right of the Province of Nova Scotia and Atlantic Provinces Special Education Authority Defendants DECISION ON COSTS Corrected Decision: The text of the original decision has been corrected according to the attached erratum dated February 11, 2026. Judge: The Honourable Justice Peter P. Rosinski Heard: November 28, 2025 in Halifax, Nova Scotia Written Decision: February 2, 2026 Counsel: Raymond Wagner, KC, Maddy Carter and Kate Boyle for the Plaintiffs Catherine Lunn and Agnes MacNeil KC for the Attorney General of Nova Scotia Dillon Trider and Laura Graham for Atlantic Provinces Special Education Authority By the Court: Introduction [1] This proceeding is by way of class action. [2] It deals with abuse in the institutional context of schools for persons who were significantly hearing impaired, when they attended those schools. [3] A Settlement Agreement has been reached between the parties. [4] To the credit of all parties, it contains provisions that are historic, in that they are expressly centred on the victims of the various abuses and sensitive to their needs - see Appendix “A” attached hereto [5] Such agreements also must be approved by this Court, before they become effective. [6] This decision addresses two motions: namely, whether the Court should approve: i. the Settlement Agreement pursuant to section 38 of the Class Proceedings Act, S.N.S. 2007, c. 28; and ii. Payment of the Class Counsel Fee and Disbursements pursuant to section 41 of the Class Proceedings Act, S.N.S. 2007, c. 28. [7] A comprehensive reference to the background and the litigation can be found in the affidavits of Richard Robert Martell/Michael Harry Perrier filed October 28, 2025; Maddy Carter filed August 12, 2025; and three from Kate Boyle, filed October 28, 2025, November 14, 2025, and November 21, 2025. [8] I am satisfied that: i. the Settlement Agreement should be approved - it meets the criteria of being, fair, reasonable, and in the best interests of the Class;[1] ii. the modest amounts of $15,000 honoraria should be paid to Messrs. Martell and Perrier. Their courageous decision to become the Representative Plaintiffs and commit themselves over more than a decade to seeing this litigation through to a successful end in favour of the entire Class of individuals who suffered institutional abuse spanning many decades, was primarily motivated by the desire to achieve public acknowledgement for what happened and various forms of compensation tailored to the specific circumstances of the Class;[2] iii. the Class Counsel “Fee and Disbursements” should be approved to a maximum of $12,529,710.10; and for a total of $100,161.40.[3] Background [9] Richard Robert Martell and Michael Harry Perrier are Representative Plaintiffs on behalf of a class of individuals who had made claims against the Attorney General of Nova Scotia (“[Nova Scotia”) and the Atlantic Provinces Special-Education Authority (“APSEA”) which were responsible for the students who attended the School for the Deaf located in Halifax, Nova Scotia (“the Halifax School”] and the Inter-Provincial School for the Education of the Deaf (formerly Resource Centre for the Hearing Impaired and the Resource Centre for the Hearing Handicapped, and originally known as the Interprovincial School for the Deaf in Amherst, Nova Scotia (“the Amherst School”). [10] The claims are nominally for “negligence and breach of fiduciary duty in respect of the Defendant’s operation, supervision and management of [the Halifax School and the Amherst School]” and involve various forms of serious abuses. [11] On September 21, 2015, Messrs. Martell and Perrier, as Representative Plaintiffs, both signed a Contingency Fee Agreement (“CFA”) with the law firm, Wagners. [12] On January 13, 2016, a Notice of Action with a Statement of Claim was filed against both Defendants. [13] On January 31, 2019, the Plaintiffs’ motion for Certification as a Class Action was granted by Order of Justice Patrick J. Duncan. [14] In that Order, “Class Members” are defined as: “all former students who between 1913 and 1995 attended and/or resided at one or both of the schools.” [15] “Eligible Class Members” are defined as: “all Class Members who were alive on or after January 31, 2019.” [16] The Order divided the Class into three Subclasses: i. all former students who, between 1913 and November 1, 1951, attended and/or resided at the School for the Deaf, located in Halifax (the Halifax School); ii. all former students who, between November 1, 1951, and 1974, attended and/or resided at one or both of: (i) the Halifax School; and (ii) the Interprovincial School for the Education of the Deaf; and iii. all former students who, between 1974 and 1995, attended and/or resided at the Interprovincial School for the Education of the Deaf (subsequently named the Atlantic Provinces Resource Centre for the Hearing Handicapped, and in 1989 renamed the Atlantic Provinces Special Education Authority - Resource Centre for the Hearing Impaired). [17] In April and May 2019, Statements of Defence were filed. [18] In May 2024, an agreement in principle was reached on the main economic terms of the proposed settlement concerning the SHP (“Systemic Harms Payment”) and the IAP (“Independent Assessment Process”) Payment. [19] This led to the Settlement herein of up to $36,235,702 to directly compensate Eligible Class Members, plus other amounts to pay for collective indirect benefits ($3 million), the costs of administering the settlement ($2.5 million) and payments of honoraria of $15,000 each to the two Representative Plaintiffs, and the Class Counsel Fee and Disbursements. [20] A final draft of the Settlement Agreement herein was completed in May 2025. [21] It was fully executed by all parties on August 11, 2025. The motions before the Court 1-The Settlement Approval motion[4] [22] The motion seeks an Order that would approve: i. the Settlement Agreement dated August 11, 2025, as being fair and reasonable and in the best interests of the Class; ii. the Phase 2 Notice and Phase 2 Notice Plan; iii. dismissing this action with prejudice, effective on the Effective Date (“means the later of: 1-the day following the last day on which the Settlement Approval Order may be appealed; and 2-the day following the date of a final determination of any appeal brought in relation to the Settlement Approval Order”); iv. the disclosure of the Attendance List to the Administrator and the Administrator’s use thereof in accordance with the Settlement Agreement; v. the appointment of Canadian Claims Consulting Inc. to administer the Independent Assessment Process; and vi. the payment of honoraria to the Representative Plaintiffs. [23] Each of the parties hereto is satisfied with the content of the proposed Order and that it be approved by this Court. [24] I must be satisfied that the proposed settlement is fair, reasonable and in the best interests of the Class. [25] It is so. I have considered, inter alia, the factors listed by ACJ Jamieson at para. 14 in Estey. [26] I note there was one objection raised.[5] [27] In Kate Boyle's supplementary affidavit, she states: The objection was submitted to the Administrator on November 12, 2025, and provided to Class Counsel on November 13, 2025. The Objector is a living Class Member. The Class Member communicates four concerns: (a) the Systemic Harms Payment amounts are too low considering “long term damage to our education, language, emotional health, and future opportunities”; (b) the IAP Payment amounts are too low; (c) Estates of Class Members who have died before January 31, 2019, should be eligible; (d) the Class Counsel Fee being request[ed] is “extremely high” and feels “unbalanced” because many survivors will receive “much less”. [28] Regarding the SHP and IAP payment amounts, they may appear to some to be “too low”, and particularly it may genuinely seem so to a claimant, who has personally suffered the abuses referenced in the litigation, and who has experienced ongoing trauma. [29] However, by its nature, a class action does not intend to provide precisely tailored individual compensation to class members. [30] A class action comprised of many members inevitably requires some common legal position regarding the issues in dispute between the parties, including creating categories of claimants and assigning compensation based on those categories, in light of the total compensation that the Defendants are prepared to pay. [31] The Class Members rely upon their legal counsel, and specifically their Representative Plaintiffs to "get the best deal" for their membership at large. Such decisions involve complex and conflicting considerations. [32] The Defendants have a countervailing interest, and without their agreement, there will be a trial. [33] Thus, Counsel for the Class members must make it so that the Defendants find it to be sufficiently in their interests to not go to trial. [34] While I acknowledge the objections, I do not find it to be in the interests of justice to override the comprehensive Settlement Agreement reached by the parties[6]. [35] The process requires Class Members to file Claim Forms for either or both “Systemic Harms Payment” and “Independent Assessment Process” Payment. [36] After a verification process by the Administrator (“a third-party claims administrator mutually agreed to by the Parties and approved by the Court”), who assesses which “Eligible Class Member”(s) qualify as an “Approved Claimant”, those individuals will be entitled to payment from the $36,235,702 Compensation Fund. 2-The motion for approval of the Class Counsel Fee and Disbursements as payable by the Defendants directly to Class Counsel [37] This motion is more controversial, as the parties differ substantially.[7] [38] Class Counsel has been involved since July 2015, and the CFA was signed on September 21, 2015. [39] The provisions of the CFA can be found in the filed affidavits of Michael Perrier and Richard Martell. Sections 4 and 5 thereof set out the parameters of the financial relationship between the Class and Class Counsel. [40] Part II of the CFA, entitled “Percentages Recoverable”, reads in part: I understand that Wagners shall be entitled to a legal fee, which is a percentage of the total value of any settlement or judgement to the class inclusive of any award of costs. The client shall pay, after all reasonable and proper disbursements have been deducted 25% of the collected compensation if the action is resolved before certification. … The client shall pay, after all reasonable and proper disbursements have been deducted, 30% of the collected compensation if the action is resolved after certification but before trial. The client shall pay, after all reasonable and proper disbursements have been deducted, 33 1/3 % of the collected or awarded compensation if the action is resolved after commencement of trial. [My bolding added] i-what is the proper interpretation of “collected compensation” as that term is used in the CFA? [41] Defendants’ Counsel have raised the issue of what is the proper interpretation of the term “collected compensation”, as used in the CFA? [42] The touchstone reference in the CFA, states that Class Counsel is: “entitled to a legal fee, which is a percentage of the total value of any settlement or judgement to the class inclusive of any award of costs … after all reasonable and proper disbursements have been deducted”. [My bolding added] [43] The Class and Class Counsel have agreed that the Class Counsel Fee will be a percentage of the “total value” of an agreed settlement (or a judgment ordered) excluding all reasonable and proper disbursements. [44] “Collected compensation” is used in relation to the first two scenarios in the “Percentages Recoverable” paragraph cited above. In both those scenarios the matter is resolved by the simple agreement between the parties. [45] In the third scenario, where “the action is resolved after commencement of trial”, the CFA references “collected or awarded compensation”. [46] In the latter scenario, two possibilities present themselves: the action may have resolved as a result of an agreement between the parties after trial commencement or at the end of the trial with a finding by the Court in favour of the Class. [47] This explains why the wording “collected or awarded compensation” is used in the third scenario. [48] Here I am dealing with scenario two - the relevant language is “collected compensation”. [49] The CFA is an agreement between the Class Counsel and the Class. [50] Viewed through that lens, I conclude that the intended interpretation of “collected compensation” is as put forward in the unchallenged evidence of Kate Boyle in her November 14, 2025, filed affidavit, at paragraph 30: [Regarding the “Percentages Recoverable” provisions of the CFA, Ms. Boyle stated] I am informed by Mr. Wagner, KC, and verily believe, that the reference to “collected compensation” is intended to address situations where a judgment might be obtained but cannot be collected on, such as in cases of insolvency. It reflects that Class Members would not be responsible to pay fees on funds that are not recovered or paid. [51] I accept that interpretation. [52] In present circumstances, the Defendants are not ones from whom Class Members cannot collect their compensation, and therefore the wording “collected compensation” is not anticipated to affect the quantum of compensation payable to the Class. ii-The implications of the Defendants making direct Class Counsel Fee and Disbursements payment [53] In contrast to the terms of the CFA, which contemplates that the Class will pay the Class Counsel Fee and Disbursements from the settlement monies, the Settlement Agreement Article 2 specifically sets out the “Defendants’ Payment Obligations”[8]. [54] The Settlement Agreement (as included in the Settlement Approval Order of November 28, 2025) reads: 2.1 The Defendants hereby agree to the payment of the following amounts, in accordance with and subject to the terms and conditions of this Settlement Agreement, including the right of reversion described in section 2.16: (a) Compensation Fund of $36,235,702, comprised of the SHP Fund of $14,130,702 and the IAP Fund of $22,105,000; (b) Collective Redress Fund of $3 million; (c) Representative Plaintiff Honoraria totaling $30,000; (d) Administration Fund of $2,500,000; (e) Class Counsel Fee; (f) Class Counsel Disbursements. [55] Article 2.16 reads: Reversion to Defendants On the Final Claimant Report Date, the Administrator shall return to the Defendants any undistributed balance of the Compensation Fund and any unspent portion of the Administration Fund, including applicable accrued and undistributed interest (collectively, the “Reverting Funds”. For certainty, no portion of the SHP Minimum Payment and accrued interest specific to the SHP Minimum Payment shall form part of the Reverting Funds. [56] A dispute has arisen, between the Class Counsel and the Defendants, regarding the amount of the Class Counsel Fee and Disbursements that the Court should approve. [57] I note that, strictly speaking, the Defendants have taken no position on the quantum of costs per se that is appropriate; however, they each make significant qualitative submissions, as APSEA stated in its brief at paragraphs 3 - 12: “only intended for the assistance of the Court in coming to its decision”; and as the Attorney General stated in her written submissions (paras. 21-22), her Counsel requests the Court’s permission: to make limited submissions on the background principles utilized by the Court in fee approval motions, interpretation of the provisions on fees in the Settlement Agreement, and the timing of the payment of the fees approved. … the Court should exercise its discretion to grant status to the Defendants to make submissions … on the issue of Class Counsel fees at the Motion for Approval on November 28, 2025, limited to providing the general legal context of fee approval motions for the Court’s consideration in raising issues related to what would be fair and reasonable in terms of the interpretation of the Settlement Agreement provisions on fees and the timing of the payment of fees approved. [My bolding added] [58] The jurisprudence generally favours defendants having no standing to speak to Class Counsel fees, and further questions whether such defendants can be parties to an appeal - for example see the reasoning in Parsons v. Canadian Red Cross Society, [2001] O.J. No. 214; 2001 CPC (5th) 17 (ONCA) at paras. 1-10 which affirmed Justice Winkler’s reasons - [2000] O.J. No. 2374 (SC) at paras. 56-58; and Endean v. British Columbia and Canada (Attorney General, 2000 BCCA 638. [59] However, the nature of their qualitative arguments is such that they, in the result do tend to chip away at the quantum that might otherwise be payable under the Settlement Agreement to the Class Counsel. [60] As noted by Class Counsel in its Rebuttal Brief of November 14, 2025, (paras. 1-29) it had taken the position that: the Court should decline to hear from the Defendants entirely regarding the Class Counsel Fee and Disbursements - which argument is not without some sound basis in general terms; and, in part, specifically so here because the Defendants have not given the Class Counsel an opportunity to negotiate with the Defendants regarding the quantum of the Class Counsel Fee and Disbursements. [61] Although Class Counsel’s argument is reasonable in most cases, however on balance, the Court did not wish to entirely foreclose the Defendants an opportunity to elucidate their position that they only sought to render “assistance” to the Court, particularly given their potential entitlement to the “Reverting Funds” - see also the reasons of MacPherson JA in Lavier v. MyTravel Canada Holidays Inc., 2013 ONCA 92 at paragraphs 32 - 34; Wilson v. Servier Canada Inc. [2005] O.J. No. 1039, 9 CPC (6th) 83 at paragraphs 18 - 21 (ONSC); and Wenham v. Canada (Attorney General), 2019 FC 1653 per Phalen J. [62] After negotiations stretched from May 2024 to August 2025[9], from the time the Settlement Agreement was reached on August 11, 2025[10] the Defendants have taken on the responsibility to pay the Class Counsel Fee and Disbursements. [63] I believe it important to state that, in the Court’s opinion, having done so, the Defendants are acting honourably which is particularly important here given the nature of the claims. [64] Article 2.21 thereof states: “The Defendants shall pay to Class Counsel the Class Counsel Fee and Class Counsel Disbursements, as approved by the Court, within the later of …”. [65] The parties have therefore left in the hands of the Court the assessment of what is an appropriate Class Counsel Fee and Disbursements. [66] Nevertheless, the CFA remains the touchstone for the Court’s assessment of the Class Counsel Fee and Disbursements. [67] This is so because Class Counsel has taken on this case and conducted it on the basis that it would be compensated under the terms of the CFA. [68] In the normal course, Class Counsel would have been entitled to be paid their Fee and Disbursements out of the settlement funds which were to be for the benefit of the Class members pursuant to the terms of the CFA. [69] That the Defendants had agreed to pay the Class Counsel Fee and Disbursements independently of the compensation provisions thereof is a further benefit to the Class. [70] Let me next examine the CFA and the evidence presented to the Court. [71] I agree with the tenor of Justice Brothers’ reasoning from Gallant, 2022 NSSC 347 at paragraph 40, regarding her Class Counsel Fee award, that: “While, I will not apply a presumption in favour of adopting the terms of the Contingency Fee Agreement, the agreement will be a significant consideration in the starting point of my analysis”. [72] Because the Defendants have agreed to pay Class Counsel whatever amounts are approved by the Court as the Class Counsel Fee and Disbursements, I would say, in a broad sense, the Plaintiffs and Defendants intend the Court to do justice between the parties insofar as the “costs” of the litigation are concerned. [73] Let me first make a general observation. [74] There are a limited number of legal firms in Nova Scotia which have the experience, expertise, resources, and the interest in supporting the maintenance of a class action over an extended period of time. [75] Such cases are risky: the risks include the carrying costs of the expenses of the litigation which may never be reimbursed, and the opportunity cost of other legal matters that were not undertaken, but which may well have brought greater financial benefit to the Class Counsel. [76] Typically, to the extent that the Class/Plaintiffs are unsuccessful, Class Counsel will suffer very serious financial consequences. [77] Most drastically, if the lawsuit is entirely unsuccessful, Class Counsel may be paid no fees at all by the Class. [78] Such risks are not to be underestimated as a potent factor which will discourage a great majority of counsel from taking on such cases. [79] It is generally desirable to the pursuit of justice in Nova Scotia, that localized firms are available and willing to take on class actions arising from events arising in Nova Scotia. [80] To its credit, Wagners is such a firm. [81] Generally, in a free market situation, the greater the risk, the greater the return should be for those who take the risk. [82] Wagners took on this challenging class action on the expectation that, if successful, the CFA would govern its financial reward. [83] It is fair to characterize the outcome for the Class as very successful. [84] Although on August 11, 2025, the Defendants accepted responsibility for the payment of the Class Counsel Fee and Disbursements under the Settlement Agreement, the Court should be loath to depart to a material degree from the spirit of those provisions in the 2015 CFA, bearing in mind, however, that I must be governed by the terms of the 2025 Settlement Agreement[11]. iii- What is a fair, reasonable and proportional outcome regarding the claimed Class Counsel Fee and Disbursements? [85] The draft Order presented by Class Counsel to the Court, reads: 1. A maximum Class Counsel Fee of $12,529,710.60 plus HST is approved as fair and reasonable. 2. First Payment: The payment of Class Counsel of a portion of the Class Counsel Fee in the amount of $10,799,057.90 plus HST of $1,612,299.35 (reflecting a blended HST rate of 14.93%) shall be made within the later of: (a) 90 days after the Effective Date; and (b) 90 days after the Court's approval of the Class Counsel Fee and Class Counsel Disbursements, in accordance with section 2.21 of the Settlement Agreement. 3. Second Payment: The payment to Class Counsel of the remainder of the Class Counsel fee in the amount of 30% of: (a) any amount of the distributed and non-reverting Compensation Fund in excess of $30,966,859.80 (being the SHP Minimum Payment plus 80% of the potentially reverting Compensation Fund of $26,344,211); plus (b) any amount of the spent Administration Fund in excess of $2,000,000 ( being 80% of the Administration Fund), plus HST, up to a maximum of $1,730,652.66 plus HST, shall be made within 30 days of the Final Claim Report Date. 4. Class Counsel Disbursements in the amount of $87,734.01 plus HST of $12,427.39 for a total of $100,161.40, are approved as fair and reasonable, and shall be paid to Class Counsel in accordance with the terms of the Settlement Agreement. 5. There are no costs of this motion. [86] Sections 40 and 41 in the Class Proceedings Act, govern here. [87] I will not repeat the written and oral arguments presented by the Defendants but wish to emphasize that I have carefully considered them all. [88] I have examined the proposed disbursements and see no persuasive reason to reject Class Counsel’s request that they be approved in their entirety. [89] Let me next examine the Fee claimed by Class Counsel. [90] On their face, the CFA provisions suggest it be a maximum of 30% of $41,765,700.33 or $12,529,710.10. [91] I find that the reference to “the total value of any settlement or judgement to the class inclusive of any award of costs” referenced in section 5 of the CFA should be interpreted broadly and in a functional manner - which might be ascertained by asking: what value is the item to the benefit of the Class members? [92] Therefore, even items the Defendants are obligated to provide, such as the Administration Fund (which is necessary machinery to see tangible benefits provided to Class members), should be characterized as “value” related monies, because they have a discernible beneficial nexus to Class members’ interests arising from the settlement obligations upon the Defendants and therefore ought to be included in an assessment of the “total value” of the settlement. [93] The Collective Redress Fund has a similar function and status. I observe that, regarding whether to approve a settlement agreement, ACJ Jamieson came to similar conclusions in Estey, supra, at paras. 23-25. [94] Courts have used a variety of measures, qualitative and numerical, to determine whether a percentage Class Counsel Fee applied to the value of the settlement should be accepted by a court as fair and reasonable. [95] In Gallant, supra, Justice Brothers referenced relevant qualitative factors, each of which I have considered in the present case: [37] In deciding whether to approve class counsel's request for legal fees, the court must determine whether those fees are fair and reasonable in all the circumstances. The factors to be taken into account are well established, and were summarized in Smith Estate v. National Money Mart Co., 2011 ONCA 233, as follows: (a) the legal and factual complexities of the action; (b) the risks undertaken, on both the merits and the prospects of certification; (c) the degree of responsibility assumed by class counsel; (d) the monetary value of the matters at issue; (e) the importance of the issues to the class members; (f) skill and competence demonstrated by class counsel throughout the action; (g) results achieved; (h) ability of the class to pay and the class’ expectation of legal fees; (i) the opportunity cost to class counsel in the expenditures of time in pursuit of the litigation. [96] There are also quantitative factors that can be used as yardsticks against which to roughly assess the reasonableness of the Class Counsel Fee in this case, such as the multiplier approach - this approach involves multiplying the actual number of hours of service rendered by an hourly rate, and then applying a multiplier to the base fee to result in a fair and reasonable compensation for Class Counsel. [97] In ACJ Jamieson’s reasons in Estey (where she approved an $8 million fee on an all-inclusive settlement of $32 million including the $8 million fee, with a potential to increase to $34 million) she stated at para. 42: I am also of the view that it is appropriate to examine the reasonableness of the percentage-based fee measured against the actual time incurred. … The $8 million fee represents an approximate multiplier of 2.7 with the total expected fees. I agree with counsel that the 2.7 multiplier is within an accepted range in the jurisprudence… [98] Between July 2015 and October 28, 2025, Class Counsel has “docketed time with a value of $3,474,676.50 before tax … [which] represents 6231.71 hours of work spent on this matter… The average hourly rate is $558”. (Boyle Affidavit, paras.121-123) [99] This amount does not include work that would have been done between October 28 and November 28, 2025, and also excludes “any work required of Class Counsel post-settlement approval … [a description of the work anticipated during that period is contained in para. 129-Boyle affidavit, Oct 28, 2025].” [100] Class Counsel remains professionally bound to continue with the matter until it is completed - even if the Class Counsel Fee and Disbursements Order of the Court restricts the permissible amount of such Fees and Disbursements below what were the reasonable expectations of Class Counsel. [101] Ms. Boyle states in her affidavit at paragraph 132: Based on experience in past class actions and taking into account relevant considerations specific to the Settlement Agreement, Class Counsel estimate that an additional 850,000 - $1,500,000 [which I note would be between 1523 and 2688 hours at the average rate 558$ per hour- para. 123] worth of docketed time may be required after settlement approval. [102] I conclude that the maximum “total value” of the settlement is $41,765,700.33[12]. [103] The maximum Class Counsel Fee claimed is 30% or $12,529,710.10. [104] The actual time incurred to October 28, 2025, is 6231 hours which at $558 per hour amounts to $3,476,898 in fees. [105] I accept Counsel’s estimate, that a further 1523 to 2688 hours will need to be consumed to finish the litigation - being between $850,000 and $1,500,000 further fees. [106] Thus, we have an estimated total number of hours docketed between 7754 and 8919, and between $4,326,732 and 4,976,802 in fees until the litigation is expected to be finished. [107] The average value of that total expected docketed time is approximately $4.65 million. That is a reasonable estimate in all the circumstances. [108] The maximum total value of the settlement is $41,765,700.33 - under the CFA, Wagners could have receive up to 30% or $12,529,710.10 in Fees. [109] If the average of the docketed time - $4.65 million - anticipated to be required by Wagners to finish the litigation - is multiplied by a factor of 2.694, it equals $12,527,100 in Fees. [110] Thus, the multiplier that Class Counsel is seeking the benefit of in this case is 2.694. [111] Another measure is the percentage of the Class Counsel Fee in relation to the overall value of the settlement. Here, that was 30%. [112] I conclude that both these measures are within the range of reasonable outcomes given the circumstances of this litigation. [113] I have also considered the qualitative factors listed above, which strongly favour an enhanced fee. [114] The experience, resources, expertise and skill of Class Counsel (Wagners) in the area of class actions is a significant factor. [115] I am satisfied there was genuine risk regarding the likelihood of a successful certification and merits outcome, and whether the litigation would be financially successful, given, inter alia, the likely length of the litigation, and the issues surrounding the quality of the evidence that could be marshalled, and how many class members were available and interested in pursuing the matter, when the CFA was signed in 2015. [116] Those risks were real and also had to be contrasted with the potential lost opportunities to litigate other matters instead. [117] The opportunity costs of other litigation that may have been more lucrative, in addition to the carrying costs borne by Class Counsel by virtue of not receiving any payment for Class Counsel’s work over the preceding 10 years, favour the Court’s being satisfied that the claimed Class Counsel Fee is reasonable and proportionate given all the circumstances. [118] I have as well considered the comparison with the circumstances in the Estey case as set out at paragraph 93 of the Plaintiff's Rebuttal brief filed November 14, 2025. I note that in Estey the settlement was between $32 and $34 million, similar to the present circumstances, and Counsel there sought $8 million which is 25% of the initial $32 million settlement. However, notably in Estey, the duration of the litigation was 3 ½ years as compared with 10 years in Martell and Perrier. I also note that in Gallant, the institutional abuse claims were settled on the basis of a $10 million fund for which counsel sought approval of a fee in the amount of 33% of the total settlement value after deducting disbursements, or $3,233,000 plus HST. I have also taken note of Justice Perrell's comments in Fresco v. Canadian Imperial Bank of Commerce, 2023 ONSC 3335 (upheld on appeal 2024 ONCA 628) at paragraph 116 where he makes the point that the percentage spelled out in a contingency fee agreement can lose its relevancy as the settlement fund amount increases. [119] My assessment of all the various risks of this litigation, albeit in hindsight, is that they were significant, and for Wagners to proceed as counsel with the litigation is deserving of a commensurate reward given the level of success that has been achieved for the Class. [120] The litigation claimed abuses between the early 1900s and 1995, in two different geographical locations, where I am satisfied many records have been lost to the sands of time, and alternative sources having sufficient reliability are unavailable. [121] No action regarding these events of long ago was taken until 2015. [122] The members of the Class were vulnerable, and the breaches of trust and abuse they suffered likely contributed to their not individually considering/taking civil action against the institutions and/or individuals responsible, and they consequently have been without their deserved compensation for many years more than should have been the case. [123] I infer that the vast majority of the individual Class members would not likely have been in a position to have retained Class Counsel to represent them as individuals. [124] The litigation was of great public importance, and an honourable undertaking, as it would ultimately, in some measure, expose the long-term institutional failings of those schools, and shed light on the terrible abuses imposed on students there by those who purposefully or otherwise failed in their duties to protect, educate and nurture those particularly vulnerable children in their care. Conclusion [125] Pursuant to sections 40 and 41 of the Class Proceedings Act, SNS 2007, c. 28, weighing all the relevant factors and taking note of the most authoritative jurisprudence, I am satisfied that a fair, reasonable and proportionate Class Counsel Fee includes the 30% intended by the CFA. [126] I approve as a maximum, a Class Counsel Fee in the amount of $12,529,710.10 and Disbursements of all $87,734.01 plus HST of $12,427.39 for a total of $100,161.40, which shall be paid to Class Counsel in accordance with the terms of the Settlement Agreement. Subsidiary Issues [127] Counsel have noted that there are subsidiary issues to be considered including: 1. that the Class Counsel fee be paid in two instalments as set out in the draft Order submitted by Class Counsel which is also explained in the Plaintiffs' brief filed November 4, 2025, at paragraphs 43 - 54. I agree this is appropriate. 2. there should be a 20% holdback for the Potentially Reverting Funds - I agree. [128] I wish to thank all counsel personally for their diligent and high-quality work, both pre-settlement and post-settlement, in assisting the Court in this matter. [129] I direct Class Counsel to expeditiously prepare a draft Order for my approval, which wording should be consented to by the Defendants before being submitted to me on or before February 5, 2026. Rosinski, J. SUPREME COURT OF Nova Scotia Citation: Martell v Nova Scotia (Attorney General), 2026 NSSC 36 Date: 20260202 Docket: Halifax No. 447198 Registry: Halifax Between: Richard Robert Martell and Michael Harry Gerald Perrier Plaintiffs v. The Attorney General of Nova Scotia, representing His Majesty the King in right of the Province of Nova Scotia and Atlantic Provinces Special Education Authority Defendants ERRATUM Judge: The Honourable Justice Peter P. Rosinski Heard: November 28, 2025 in Halifax, Nova Scotia Counsel: Raymond Wagner, KC, Maddy Carter and Kate Boyle for the Plaintiffs Catherine Lunn and Agnes MacNeil KC for the Attorney General of Nova Scotia Dillon Trider and Laura Graham for Atlantic Provinces Special Education Authority Erratum Date: February 11, 2026 Erratum Details: Pages 13-25 of Schedule “A” in Appendix “A” that were missing have been added. APPENDIX “A” [1] I announced my decision in open court on November 28, 2025, with reasons to follow. [2] See also ACJ Jamieson's references at paragraphs 27 - 29 in Estey v. Attorney General (Nova Scotia), 2025 NSSC 68; and an interesting discussion of the theoretical underpinnings of honoraria payments, which can be found in Suzanne Chiodo's article: "Tawdry or Honourable? Additional Payments to Representative Plaintiffs in Ontario and Beyond": Osgood Hall Law Journal, Volume 61, No.1 (2024), pp. 273 - 318. [3] See Justice Wood's reasons (as he then was) in Sweetland v. GlaxoSmithKline Inc., 2019 NSSC 136 at paras. 28-31. [4] Although in different circumstances, I have had the benefit of the very recent decision by ACJ Jamieson in Estey, supra, which considered similar issues in a class action, and in which she relied on Justice Christa Brothers’ reasons in Gallant v. The Roman Catholic Episcopal Corporation of Halifax, 2022 NSSC 347. [5] The Objection Deadline for Class Members to cite their objection to the Settlement agreement and/or Class Counsel Fee was November 18, 2025. [6] See the comments of Justice Stratas, for the Court, in Hébert v. Wenham, 2020 FCA 186 at paragraphs 1 -10. [7] No request to cross-examine was made by the Defendants - I accept the affidavit evidence of Kate Boyle generally, and specifically as filed October 28, 2025, inter alia, that a reasonable estimate of the Counsel time docketed and expected to be docketed after the Settlement Agreement is approved, will require between $850,000 and $1.5 million in further fees (paras. 132 and 139 - 147). [8] I bear in mind the tenor of Justice Ward Branch’s concerns that direct payments by Defendants toward Class Counsel fees tend to create undesirable circumstances - see Wilson v. DePuy International Ltd. 2018 BCSC 1192 at paragraphs 131 - 2 and Irving v. Western Digital Corp., 2022 BCSC 108 at paras. 25-32. [9] Boyle Rebuttal Affidavit, para. 11. [10] Michael Perrier Affidavit, para. 4. [11] Our Civil Procedure Rules and jurisprudence (e.g. Armoyan v. Armoyan, 2013 NSCA 136) recognize respectively that after litigation is concluded, costs awards in the normal course, generally should “seek to do justice as between the parties” and “The basic principle is that a costs award should afford substantial contribution to the party’s reasonable fees and expenses.” (para. 16). In the present circumstances, the parties have chosen a more discretionary approach to determine the Class Counsel Fee. [12] I appreciate that the Defendants’ agreement to pay Class Counsel Fees and Disbursements saves the Class from having to pay those amounts from the settlement monies to Class Counsel, and therefore it is also a form of “value” to the Class. Arguably the “value” of the “total settlement” may be said to be closer to $54 million which would suggest an even greater Class Counsel Fee might have been appropriate. For my purposes, I will continue to consider the total maximum settlement value to be the $41,765,700.33.