



COURT
    OF APPEAL FOR ONTARIO

CITATION:
Welsh v.
    Ontario, 2020 ONCA 210

DATE: 20200317

DOCKET: C67418

Hoy A.C.J.O., Paciocco and
    Nordheimer JJ.A.

BETWEEN

Christopher
    Welsh

Plaintiff

(Respondent)

and

Her
    Majesty the Queen in right of Ontario

Defendant

(Appellant)

Jonathan Sydor, for the appellant

Shantona Chaudhury and Brodie Noga, for
    The Law Foundation of Ontario

Heard: March 13, 2020

On appeal from the order of Justice Edward
    P. Belobaba of the Superior Court of Justice, dated August 22, 2019, with
    reasons reported at 2019 ONSC 4204.

REASONS FOR DECISION

[1]

The defendant appeals from the order granted by
    the motion judge that determined that the 10 per cent levy payable to the Class
    Proceedings Fund under O. Reg. 771/92 of the
Law Society Act
, R.S.O.
    1990, c. L.8 is to be applied to the total settlement funds available to the
    class members rather than to the amount of the settlement funds actually taken
    up by those class members
.

[2]

The relevant portion of the Regulation is s. 10(3)
    which reads:

The amount of the levy is the sum of,

(a) the amount of any financial support paid
    under section 59.3 of the Act, excluding any amount repaid by a plaintiff; and

(b) 10 per cent of the amount of the award or
    settlement funds, if any, to which one or more persons in a class that includes
    a plaintiff who received financial support under section 59.3 of the Act is
    entitled.

[3]

The motion judge concluded that the plain
    wording of s. 10(3) of the Regulation supported the conclusion that the levy
    was to be applied to the amount of the settlement funds (after payment of legal
    fees and administrative costs) and not to the amount of the settlement funds
    that the members of the class actually received. He said, at paras. 33-34:

The dictionary definition of
    "entitled" is "the right to do or receive something."

Here, having paid the legal fees and notice
    and administration costs as per the settlement agreement, the class members
    were entitled (before the imposition of the 10 per cent levy) to receive $10.2
    million. It is at this point that the CPF levy is calculated.

[4]

We agree. The appellants position is contrary
    to the plain language of s. 10(3). If the Government had intended that the levy
    should be applied only to the amount actually received by the class members,
    they could easily have worded the Regulation to say so. For example, they could
    have stipulated that the levy applied to the amount of the settlement funds
    paid out to the class members or the amount of the settlement funds actually received
    by the class members or any number of other combination of words to achieve
    that result. Rather, the Government chose to word the Regulation in terms of
    the settlement funds to which the class members were entitled. In this case,
    the class members were entitled to $10.2 million. Whether they chose to take up
    their entitlement does not change the amount to which they were entitled.

[5]

The appeal is dismissed. The respondent is
    entitled to its costs of the appeal fixed in the amount of $
10,000
inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


