Is a class action settlement conditional on the payment of class counsel’s fees?

The issue was also considered by Brenner C.J.S.C. in Quatell v. Attorney General of Canada, 2006 BCSC 1840, who said the following at para. 17: While I appreciate that in this case the legal fees (at least for the [Common Experience Payment] and up to 15% of the [Individual Assessment Process] awards) are being paid by Canada and not the members of the class, it is nonetheless my view that the settlement of a class action should not be made conditional on the approval by the court of class counsel’s fees. Even where the fees are to be paid by a defendant, the court retains a statutory obligation to ensure that the settlement of a class proceeding is fair, reasonable and in the best interests of the class. In order to make that determination, the court must conduct a review of the legal fees independent of the terms of the substantive settlement to ensure that both of these components meet the statutory fairness test. To do that, court approval of class counsel fees should not be made a term of a class proceeding settlement.