In October of 2025, Justice Fred Myers whom we have quoted and reported on numerous times throughout our blog articles rendered yet another important decision, this time dealing with a side issue of the famous Robinson Huron Treaty litigation. For most people, including this author, this extremely important case which found its way more than once up to the Supreme Court of Canada dealt with a monster lawsuit brought by numerous aboriginal tribes who entered into the 1850 Robinson treaties. In those treaties, the Anishinaabe of the northern shores of Lake Huron and Lake Superior gave to the Crown vast territories in return for perpetual payments. The payments were supposed to have been adjusted in line with the resources earned by the government from the territories. However, the government basically froze those payments at $4.00 per person.
With incredible diligence and a herculean effort, a dream team of largely indigenous lawyers came together and for 17 years, fought tooth and nail for this breach of the treaty to be remedied.
For a lawyer, the decision by Justice Myers on top of the numerous other court decisions relating to the Robinson Huron Treaty cases reads like a blockbuster novel that is impossible to put down. Some of the highlights are a $10 billion settlement to be divided amongst approximately 40,000 members under the Robinson Huron treaty. The lawyers worked tirelessly and to quote Justice Myers “.. enjoyed stunning success. Through its sustained, creative and excellent efforts over some 17 years, the legal team engineered a settlement that is as historic as it is transformative to the beneficiary First Nations and their members. The legal team did great legal work. Its member lawyers represented the clients zealously, resolutely, passionately and with extraordinary success”. The lawyers over those 17 years accumulated 65,000 hours of work. However, at their normal hourly rate that would have translated into a $23 million legal bill, a fraction of the $10 billion settlement. However complicating all of this was, the negotiations at the outset in which a 5% contingency fee had been agreed to, which translated into a fee of $510 million. Yes half a billion dollars! This is the stuff of TV dramas. Nineteen of the twenty-one First Nation tribes had no difficulty with the fee, especially when the legal team agreed to donate approximately half of that fee to various indigenous charitable purposes. Only two of the twenty-one had an objection and they appeared before Justice Myers on their own behalf without the benefit of lawyers.
Justice Myers in his usual impeccable fashion skewered the agreement and the $510 million compensation sought by the six members of the legal dream team. One should note that the legal dream team with one exception indigenous members themselves, had unique talents and abilities tailored specifically to litigation of this kind.
Justice Myers felt that the $510 million fee had no justification and that the court had every right to interfere with the fee being sought.
Now what do Will and Estate Lawyers think of this? The author strongly disagrees with the decision of Justice Myers, but not on the legal basis that he has carefully crafted his decision upon. Justice Myers pointed out the incredibly important and crucial steps both practical and legal that the team took over a 17-year period. He in essence allowed the team to receive only $40 million for their fees rather than the $510 million that were due and owing under the contingency agreement that had been entered into at the outset. Justice Myers may very well be legally correct, but the factor that is not discussed is that it is critical for lawyers who are taking on highly contentious matters, in which they would have a chance under any kind of contingency agreement to receive partial or no compensation need to be amply rewarded when they take this type of lawsuit. Seventeen years is a very long time to work on a file, then only be partially or not paid at all. One needs to incentivize lawyers to take on these contentious and contingency matters. It is not enough to say that lawyers received $40 million for their work on a file and were therefore amply rewarded. The bigger issue is, this needs to be averaged with the many other loser lawsuits that earn little or nothing. Estate Lawyers and those that deal with Estate Litigation, dream of this reward, but Justice Myers has injected a wet blanket upon it.
