|Air Canada, action against the various defendants, alleging that they conspired to fix, maintain and stabilize prices of airfreight shipping services.|
IN THE SUPREME COURT OF BRITISH COLUMBIA
Air Canada, AC Cargo Limited Partnership, Societé Air France, Koninklijke Luchtvaart
Before: The Honourable Mr. Justice Hinkson
Reasons for Judgment
 On November 3, 2006, the plaintiff commenced this action against the various defendants, alleging that they conspired to fix, maintain and stabilize prices of airfreight shipping services. On March 25, 2008, this action was certified in British Columbia, as a class proceeding for settlement purposes only, in respect of a Settlement Agreement with the defendants Deutsche Lufthansa AG, Lufthansa Cargo AG, and Swiss International Air Lines Ltd., to whom the plaintiff refers collectively as “the Lufthansa defendants”. I will adopt her reference to those defendants.
 The plaintiff seeks various declarations and orders as a result of the proposed settlement of her action against the Lufthansa defendants.
 The plaintiff proposes to continue the action against the remaining defendants, to whom she refers to as “the Non-Settling defendants”. I will also adopt her reference term for those defendants.
 By separate notice of motion, the petitioner seeks approval of the retainer agreement that she entered into with respect to her claim; approval of certain legal fees, disbursements and taxes; and dispensation of the signatures of the Non-Settling defendants on any orders granted in this motion.
Approval of the Settlement against Lufthansa
 The plaintiff refers to the fact that the United States Department of Justice has already imposed criminal fines of U.S. $1.2 billion on the Non-Settling defendants with respect to the alleged conspiracy, and with respect to charges they imposed on passengers. None of the monies from these fines will apparently be paid to the customers of the Non-Settling defendants. I was advised that the Lufthansa defendants have escaped any such fines by virtue of the fact that they were the first of the alleged conspirators to offer their cooperation to the U.S. Department of Justice, and were thus granted immunity from such fines.
 In September 2006, after more than five months of negotiations and only two months after these proceedings were commenced, the plaintiffs in related U.S. class action proceedings reached a settlement with the Lufthansa defendants. Pursuant to the settlement, the Lufthansa defendants paid U.S. $85 million for the benefit of the class and agreed to be required to cooperate in the prosecution of the litigation against the Non-Settling defendants (the “U.S. Settlement”).
 The U.S. Settlement has been approved by the responsible U.S. court. The settlement that I am asked to approve (the “Proposed Canadian Settlement”) is in effect a part of the U.S. Settlement. The funds for Canadian class members in various jurisdictions were calculated by comparing the Lufthansa defendants’ air cargo sales in Canada to their air cargo sales in the U.S. and the applying that ratio without any discount to the U.S. Settlement amount to determine the Proposed Canadian Settlement amount.
 In the result, the Proposed Canadian Settlement amount of U.S. $5.338 million is in addition to the settlement figure of U.S. $85 million. Converted to Canadian funds, the Proposed Canadian Settlement figure was valued at $6,723,242.55 as of November 30, 2008, and was deposited into an interest-bearing account on that date. Residents of Quebec will receive 7.2% of the Proposed Canadian Settlement, and the remaining 92.8% of the Canadian Settlement will be paid to members of the classes in British Columbia and Ontario. The Ontario class includes all claimants in the Canadian courts other than those residents in either Quebec or British Columbia. The exact division of monies between British Columbia and Ontario class members has yet to be determined, but it is anticipated that approximately $850,000.00 of those funds will be paid to British Columbia class members based on the British Columbia percentage of the total Canadian population. It is not proposed that any of those funds will be distributed to class members at the present time.
 The deposit of funds is subject to a variety of conditions on the Lufthansa defendants and on the claimants to the funds. British Columbia class counsel asserts that the Proposed Canadian Settlement is to the advantage of the class as it will result in the provision of industry information and reports, transaction data and sales summaries, and confidential information from the U.S. class counsel including information provided during the settlement negotiations. They argue that it will also reduce the risks of the litigation against the Non-Settling defendants.
 The Non-Settling defendants take no position with respect to the Proposed Canadian Settlement, and the Lufthansa defendants support it.
 The British Columbia class counsel and the plaintiff recommend the Proposed Canadian Settlement. The Proposed Canadian Settlement contemplates a joint U.S./Canadian notice program which is already underway in both countries, and in approximately 138 other countries. The settlement has already been approved in both Ontario and Quebec.
 In order to approve a settlement, I must be satisfied that it is fair, reasonable and in the best interests of the class: seeHaney Iron Works Ltd. v. Manufacturers Life Insurance Co. (1998), 169 D.L.R. (4th) 565, 9 C.C.L.I. (3d) 253 at para. 27 (B.C.S.C.).
 The eleven factors to be considered in approving a class proceeding settlement were conveniently summarized ay Groberman J., as he then was, in Jeffrey v. Nortel Networks, 2007 BCSC 69, (sub nom. Jeffrey v. Nortel Networks Corp.) 68 B.C.L.R. (4th) 317 at paras. 18-20:
The factors to be considered in approving a class proceeding settlement are now well-established. In Haney Iron Works Ltd. v. Manufacturers Life Insurance Co. (1998), 169 D.L.R. (4th) 565 (B.C.S.C.), Brenner J. (as he then was) quoted with approval the judgment of Sharpe J. (as he then was) in Dabbs v. Sun Life Assurance Co. of Canada,  O.J. No. 1598 (S.C.) setting out standards for approval. Both Sharpe J. and Brenner J. considered the eight factors set out in Newberg on Class Actions (3rd ed.) para. 11.43 to be apt in a Canadian context. The eight factors are as follows:
1. Likelihood of recovery or likelihood of success;
2. Amount and nature of discovery, evidence or investigation;
3. Settlement terms and conditions;
4. Recommendations and experience of counsel;
5. Future expense and likely duration of litigation;
6. Recommendations of neutral parties, if any;
7. Number of objectors and nature of objections; and
8. The presence of arms-length bargaining and the absence of collusion.
In Fakhri v. Alfalfa's Canada, Inc. 2005 BCSC 1123, 20 C.P.C. (6th) 70 at para. 8, Gerow J. added two additional factors to this list:
9. degree and nature of communications by counsel and the representative plaintiffs with class members during litigation; [and]
10. information conveying to the court the dynamics of, and the positions taken by the parties during the negotiation.
In Reid v. Ford Motor Co., 2006 BCSC 1454, at paragraph 11, Gerow J. produced a slightly different list, this time adding the following as a factor:
11. if counsel fees were negotiated in the settlement, and if so, how big a factor are they; ...
[This is actually the eighth factor in Gerow J.'s list in Reid]
 Having listed the factors, Groberman J. then reduced them to four broad questions for consideration before the approval of the settlement of a class action at para. 28:
• Has counsel of sufficient experience and ability undertaken sufficient investigations to satisfy the court that the settlement is based on a proper analysis of the claim?
• Is there any reason to believe that collusion or extraneous considerations have influenced negotiations such that an inappropriate settlement may have been reached?
• On a cost/benefit analysis, are the plaintiffs well-served by accepting the settlement rather than proceeding with the litigation? And
• Has sufficient information been provided to the members of the class represented by representative plaintiffs, and, if so, are they generally favourably disposed to the settlement?
 I have no doubt that counsel for the plaintiff has more than sufficient experience and ability and that they have undertaken sufficient investigations to satisfy me that the settlement proposed with the Lufthansa defendants is based on a proper analysis of the claim against those defendants.
 I accept that the case law supports that there is a strong initial presumption of fairness when a proposed class settlement negotiated at arms-length by counsel for the class is presented for approval: see Ford v. F. Hoffman-La Roche Ltd.(2005), 74 O.R. (3d) 758, 12 C.P.C. (6th) 252 at para. 113 (S.C.J.), and Ritchie-Smith Feeds Inc. et al. v. Rhône-Poulenc Canada Inc. et al., 2005 BCSC 583 at paras. 2-3.
 While British Columbia class counsel were not the negotiators who reached the U.S. Settlement, it is apparent that the U.S. counsel for the class in that jurisdiction were negotiating at arms’ length, and that settlement has, of course, been approved in that jurisdiction. I accept that the second broad question posed by Groberman J. can be answered in the negative.
 In terms of a cost/benefit analysis, I am cognizant of the fact that the Proposed Canadian Settlement against Lufthansa is in some considerable measure designed to assist in the prosecution of the claims against the Non-Settling defendants. TheProposed Canadian Settlement is for an amount that is not insignificant, quite apart from the non-monetary advantages that it provides to the British Columbia class. I am therefore satisfied that the third question posed by Groberman J. can be answered in the affirmative.
 I have very little evidence of the volume or nature of the information provided by the representative plaintiff to the members of the class, and even less about the disposition of the class members to the proposed settlement. Apparently only nine potential Canadian class members have chosen to opt out of the class. In that the Proposed Canadian Settlement relates to only some of a large number of defendants, and that it has the advantage of reducing the risks of the class against the Non-Settling defendants, I do not consider this question in this case to be a determinative one. In particular, I do not consider that it should dissuade me from approving the Proposed Canadian Settlement against Lufthansa.
 In the Ontario action against the same defendants as are named in these proceedings, Madam Justice Leitch, when approving the Proposed Canadian Settlement, noted at paras. 14-15 that among the terms of the Proposed Canadian Settlement are that the Lufthansa defendants are solely responsible for the payment of all costs of administering and distributing the settlement fund and of the Notice Program. Her reasons for judgment are indexed as Nutech Brands Inc. v. Air Canada,  O.J. No. 709 (S.C.J.).
 Madam Justice Leitch also addressed the “bar order” proposed in the approval motion at paras. 22-24, and for the same reasons that she identified in her decision, I also approve that term of the proposed order.
 In the result, I approve the order sought by the plaintiff with respect to the Proposed Canadian Settlement against the Lufthansa defendants in the terms set out in the draft order. I do not consider that this approval will in any way fetter my discretion with respect to any future approvals sought against any of the Non-Settling defendants.
The Approval of Fees, Disbursements and Taxes
 Counsel for the B.C. class seeks the approval by the Court of the immediate payment of fees, disbursements, and taxes from the funds held in trust for the Proposed Canadian Settlement. The total proposed for fees throughout Canada is Canadian $1.5 million, with an additional Canadian $264,128.81 for disbursements and Canadian $88,206.41 for G.S.T.
 Payment of fees for class counsel in other Canadian jurisdictions will not be the same as the payment in British Columbia. British Columbia is not a jurisdiction where costs can be recovered in class actions, whereas in Ontario, such costs may be recoverable. The Lufthansa defendants are not making any payments for costs in any Canadian jurisdiction.
 Despite this difference, the Notice Program for the Proposed Canadian Settlement proposes that class counsel in Ontario and British Columbia will recover not more than 25% of the Proposed Canadian Settlement for fees. The British Columbia class counsel advise that their fees will be slightly less than 20% of the British Columbia share of the settlement.
 Madam Justice Leitch has also approved the Ontario class counsel retainer agreement and the proposed fees, disbursements, and taxes for both British Columbia and Ontario class counsel in reasons indexed as Nutech Brands Inc. v. Air Canada,  O.J. No. 710 (S.C.J.).
 I agree with and adopt the reasoning employed by Madam Justice Leitch, and approve the order sought in this jurisdiction for approval of the retainer agreement, and for payment of the proposed fees, disbursements, and taxes. Again, I do not consider that my approval will in any way fetter my discretion with respect to any future approvals sought against any of the Non-Settling defendants.
 The signature of the Non-Settling defendants on the orders referred to in these Reasons for Judgment will not be required.