The Ontario Superior Court of Justice recently issued two significant decisions, Nootchtai v. Nahwegahbow Corbiere Genoodmagejig, 2024 ONSC 6088 and Nootchtai v. Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, 2025 ONSC 6071, which provide important guidance on the assessment of legal feels within the context of large scale settlements.
Background
These court cases trace back to the Robinson Huron Treaty which was signed in 1850. That agreement included an “augmentation clause” promising that annuity payments to First Nations would go up if the lands they ceded brought in enough money. Despite this promise, the annual payment stayed at just $4 per person for more than a century.
In 2010, 21 First Nations created the Robinson Huron Treaty Litigation Fund (“RHTLF”) to push for fair compensation through negotiations or court action. They launched a lawsuit in 2014, arguing that Canada and Ontario had failed to uphold their treaty obligations, fiduciary duties and rights protected by section 35 of the Constitution Act, 1982. The Court agreed, ruling that the Crown had a responsibility to raise annuities.
After this decision, the RHTLF entered negotiations with Canada and Ontario. In January 2024, the parties reached a historic $10‑billion settlement, split evenly between the two governments, to compensate for past breaches of the treaty. The court later approved the Settlement Agreement, marking a major milestone in recognizing treaty rights and advancing reconciliation.
The legal team representing the RHTLF had been retained under a Partial Contingency Fee Agreement, which provided for a contingent success fee of 15% on the first $100 million and 5% on any amounts above $100 million. Following the settlement, the legal team sought payment of $510 million in fees. The legal team later offered to share $255 million of those fees with the Fund for specified communal purposes. These cases revolve around whether the court would allow such a large amount of legal fees to be paid.
The Right to Assessment:
Nootchtai v. Nahwegahbow Corbiere Genoodmagejig, 2024 ONSC 6088
On April 22, 2024, the Chiefs and trustees of the RHTLF met to review and vote on the proposed legal fees connected to the Robinson Huron Treaty settlement. At the meeting, 67% of Chiefs and 71% of trustees in attendance voted in favour of approving $510 million in legal fees. These fees were then paid out around May 3, 2024, from the $10‑billion settlement fund.
Following this, Gimaa (Chief) Craig Nootchtai of Atikameksheng Anishnawbek, and Ogimaa Kwe (Chief) Karen Bell and Councillor Chester Langille of Garden River First Nation asked the court to asses the legal fees that had been approved and paid.
The first question before the court was whether it had the authority to order such an assessment. Relying on section 9(4) of the Solicitors Act, the court confirmed its power to send the lawyer’s bill for assessment. It ultimately ordered that both the Partial Contingency Fee Agreement and the legal fees themselves were to be formally assessed.
The Assessment of Fees:
Nootchtai v. Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, 2025 ONSC 6071.
The second decision focused on the assessment itself. The court acknowledged that contingency fees are a legitimate form of lawyer remuneration in Ontario, often calculated as a percentage of a client’s recovery, and play an important role in ensuring access to justice. However, the court emphasized that lawyers are not entitled to a percentage of a client’s recovery that amounts to a windfall, meaning a sum disproportionate to the value of the professional services rendered. If the sum amounts to this disproportionate windfall, it would be champerty. Champerty is roughly described as buying a piece of a lawsuit without a legitimate interest in the case. In other words, lawyers in Ontario are entitled to fair and reasonable fees but not a ‘piece of the action.’ Champerty has long been prohibited in common law jurisdictions, with roots tracing back centuries in English law. It remains illegal in Ontario.
In cases involving “mega-fund” settlements, such as the $10 billion settlement in the Robinson Huron Treaty litigation, the court highlighted the importance of maintaining proportionality between lawyers’ fees and the settlement amount. The court found that the legal team’s contingent success fee of $510 million was neither fair nor reasonable.
The court determined that the Partial Contingency Fee Agreement, signed in 2011, was not fair when it was made. The clients, representing the First Nations, did not receive independent legal advice before entering the agreement. They did not fully understand the nature and risks of the agreement, including the financial obligations it entailed and whether a percentage-based fee was appropriate for a potential mega-fund case.
The court also concluded that the agreement was not reasonable at the time of the hearing. The resulting fee was found to be disproportionate to the time spent, the value of the services, the success achieved, and the actual risks undertaken by the legal team. The legal team’s financial risk was limited because the Fund paid most legal fees and all disbursements, and the legal team even helped the Fund secure financing for legal fees. For context, total billable fees at normal rates amounted to approximately $23 million before disbursements, against which the $510 million sought represented a multiplier of more than 20 times.
Consequently, the court declared the Partial Contingency Fee Agreement unenforceable. With the contingency fee agreement unenforceable, the court proceeded to assess the value of the legal team’s services on a quantum meruit basis. Quantum meruit means “as much as deserved” and involves determining a fair and reasonable amount for services rendered. In this assessment, the court considered various factors, including the complexity of the case, the responsibility assumed, the skill demonstrated, and the significant results achieved.
The court determined that doubling the legal team’s billable fees was an appropriate and deserved recognition of their work. This calculation resulted in a fair and reasonable fee of approximately $40 million for the legal team. As a result, the court ordered the legal team to refund $232 million to the Fund, representing the excess amount paid over the approved fee.
Conclusion
The Nootchtai v. Nahwegahbow Corbiere Genoodmagejig decisions represent how courts supervise legal fee arrangements, particularly in large-scale settlements involving Indigenous communities. These rulings affirm the courts’ commitment to ensuring that legal fees are fair, reasonable, and proportionate to the work performed and the risks undertaken. Contingency fee agreements need to be transparent so that clients truly understand the nature of the agreement and what they are signing.
By declaring the contingency fee agreement unenforceable and assessing fees on a quantum meruit basis, the Court reinforced its role as a safeguard against unjust outcomes, ensuring lawyers are compensated appropriately without exploiting clients or undermining broader principles of justice.
How Barriston Law Can Help
Barriston Law’s Indigenous Legal Department has extensive experience advising First Nations and Indigenous organizations on a wide range of legal matters, including the negotiation and review of legal retainer agreements, specific claims and treaty rights litigation, and governance structures. The Nootchtai decisions underscore the importance of proper legal guidance when entering into complex fee arrangements, particularly in high-value litigation involving Indigenous communities. Our team is committed to ensuring that First Nations clients understand their rights and obligations at every stage of the legal process.
Contact Barriston Law
To learn more about how Barriston Law can support your community or organization, visit barristonlaw.com or contact our Indigenous Legal Department directly.
Written by Garnik Martirosov and Wyatt Shipley
Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. Every community’s circumstances are unique. Before pursuing any legal fee assessment, retainer arrangement, or related matter, readers should obtain independent legal advice tailored to their specific situation.