Executive Summary: Key Legal and Evidentiary Issues

• Court approval of a third-party litigation funding agreement under section 33.1 of the Class Proceedings Act, 1992 (CPA), including scrutiny of fairness, reasonableness, and impact on solicitor-client control.
• Assessment of Bench Walk’s financial capacity and the sufficiency of its adverse costs indemnity and disbursement funding to support a complex, document-heavy class action through trial.
• Comparison of the funder’s percentage return and caps against other court-approved funding agreements and the Class Proceedings Fund, to ensure the class is not overburdened by funding costs.
• Safeguards preserving the representative plaintiff’s control over the litigation, including instructions to counsel, settlement decisions, and protection of privilege and confidentiality.
• Use of statutory powers under section 13.1(8) of the CPA to preclude similar overlapping Ontario class actions without leave of the Court, in light of substantial funding commitments and parallel proceedings in Quebec and British Columbia.
• Consideration and approval of redactions to the funding agreement (under section 31.1(5) CPA principles) to prevent tactical disadvantage while ensuring judicial oversight via an unredacted copy to the Court.

Background and nature of the proposed class action

The proceeding is a proposed class action brought by representative plaintiff Taylor Pill against Amazon.com, Inc. and Amazon.com.ca ULC in the Ontario Superior Court of Justice. The claim is advanced on behalf of millions of Amazon customers who are alleged to have been harmed by unfair practices in the marketing and delivery of Amazon Prime subscription services. The alleged misconduct concerns how Amazon represented, sold, and administered its Prime subscription, and whether those practices breached consumer protection standards on a systemic basis. Given the breadth of the customer base and the complexity of Amazon’s subscription platform, the case is expected to require extensive document and data management, sophisticated expert evidence, and significant trial preparation over a lengthy litigation timeline. The plaintiff is unlikely to bear this financial burden personally, making external funding a practical necessity to advance the claim on behalf of the proposed class.

Third-party funding arrangement with Bench Walk

To support the litigation, the plaintiff, his counsel, and Benchwalk 25d, L.P. and Bench Walk Associates GP LLP (affiliates of Bench Walk Advisors, LLC, collectively “Bench Walk”) entered into a third-party litigation funding agreement on May 9, 2025, later amended on November 18, 2025. The agreement is a “third-party funding agreement” within the meaning of section 33.1 of the Class Proceedings Act, 1992, which governs arrangements where a non-party funder provides money or an indemnity to pursue a class proceeding in return for a share of any monetary award or settlement funds or other consideration. Under the agreement, Bench Walk is to provide disbursement funding and an adverse costs indemnity up to a specified maximum, calibrated to counsel’s best estimate of what is needed to take the action through trial. If the case produces a monetary recovery, Bench Walk will first be repaid for any disbursements it has funded, and then receive a percentage share of the net litigation proceeds (after payment of legal fees and administrative costs), subject to caps that vary depending on the stage at which the case resolves. Parts of the agreement filed with the court and served on the defendants are redacted, consistent with the statutory allowance for redacting information that could confer tactical advantage on the defendants, but an unredacted version has been provided to the judge for full review.

Independent legal advice and protection of solicitor-client relationship

A central statutory concern under section 33.1(9)(a) of the CPA is whether a funding agreement is fair and reasonable and does not impair the representative plaintiff’s right to instruct counsel or control the litigation. In this case, the plaintiff obtained independent legal advice from Paul Davis, an experienced class actions lawyer at Paliare Roland Rosenberg Rothstein LLP, before first entering the agreement with Bench Walk, and again before signing the amended version. The agreement expressly preserves the plaintiff’s control over the litigation. It confirms that the representative plaintiff directs the conduct of the proceedings and retains the authority to accept or reject settlements, subject only to notifying Bench Walk of settlement offers made or received. It also includes safeguards to ensure that solicitor-client privilege and the confidentiality of information shared on behalf of the plaintiff and class members are preserved. These terms mirror provisions previously approved in Lochan v. Binance Holdings Limited, where similar protections around client control and privilege were upheld as acceptable.

Bench Walk’s financial capacity and indemnity obligations

The court closely examined whether Bench Walk is financially able to satisfy the adverse costs indemnity required by the statute. Bench Walk has operated since 2017 as a specialized litigation funding entity and, on the record before the court, has access to capital commitments, including through affiliated investment vehicles, exceeding USD 100 million. It has represented that it has committed the necessary capital to fund this litigation. The judge accepted this financial evidence and found no basis to doubt its ability to meet the anticipated disbursements and any adverse costs awards to the extent of the agreed indemnity. This finding is important not only for the plaintiff and class but also for the defendants, who are statutorily entitled to recover costs directly from the funder, and, if necessary, to seek security for costs from the funder in specified circumstances.

Comparison with other funding models and cases

The court also evaluated whether the funding terms were commercially reasonable from the perspective of the class, particularly the percentage return and caps on Bench Walk’s share of any recovery. The funder’s return was compared both to other third-party agreements approved in Canadian class proceedings and to the Ontario Class Proceedings Fund administered by the Law Foundation. In comparable cases such as Difederico v. Amazon.com Inc., Hoy v. Expedia Group, Barron v. Ford Motor Co., and Drynan v. Bausch Health Companies Inc., courts approved percentage-based fees for funders, some without dollar caps and some with very high maximums. The Bench Walk agreement, by contrast, features percentage returns within the judicially accepted range but with caps positioned at the low end of what courts have previously approved. It is also more financially advantageous to the class than Class Proceedings Fund support, which typically entitles the Fund to a flat 10% of any recovery with no upper limit and requires plaintiffs to reapply for ongoing funding at multiple stages. By comparison, Bench Walk’s funding is structured to continue post-certification without repeated applications, and its committed capital pool is larger than the Class Proceedings Fund’s reported balance as of December 31, 2024. The agreement also includes a feature that reduces Bench Walk’s return in the event of a settlement by a specified date in the anticipated 2026 mediation, while permitting the court to reduce the return further, enhancing protection of the class’s net recovery.

Protection of class members’ procedural interests

From a procedural standpoint, the agreement and the related orders aim to maximize the likelihood that the class action can be properly advanced without imposing undue financial risk on the representative plaintiff or undermining class members’ substantive and procedural rights. The court was satisfied that the agreement does not erode the plaintiff’s ability to instruct counsel, nor does it compromise the independence of counsel in acting in the best interests of the plaintiff and the proposed class. The confidentiality and privilege protections also ensure that disclosure of case materials to Bench Walk does not prejudice class members. The redaction regime, grounded in statutory authority, balances the need to prevent tactical disadvantage against the defendants with the court’s oversight responsibilities by ensuring that the trial judge has the complete, unredacted agreement.

Order precluding overlapping Ontario proceedings

Beyond the funding approval, the plaintiff requested and obtained an order designating Orr Taylor LLP as counsel for the proposed class and precluding the commencement of similar actions in the Ontario Superior Court relating to the same allegations without leave of the Court and notice to that firm. This request was driven by concerns about “copycat” actions that could undermine the efficiency of the proceedings and the economic viability of the funding arrangement, especially given Bench Walk’s significant capital commitment. The court considered section 13.1(8) of the CPA, which authorizes such preclusion orders where another proposed class proceeding would involve the same or similar subject matter and overlapping class membership, and where more than 60 days have elapsed since the existing proceeding was commenced. Those statutory criteria were met: more than 60 days had passed, and counsel identified two similar class actions in other provinces (in Quebec and British Columbia) that had been filed after a high-profile settlement between Amazon and the U.S. Federal Trade Commission, although no competing action had been commenced in Ontario. The judge found that, in these circumstances, precluding overlapping Ontario actions without leave promotes the orderly and efficient prosecution of the case and protects the interests of the proposed class, while still preserving individual autonomy through the usual right to opt out at the certification stage.

Outcome of the motion

In the result, the court approved the third-party funding agreement and related documents under section 33.1 of the CPA, finding that the arrangement is fair and reasonable, preserves the solicitor-client relationship, adequately protects the plaintiff’s and class members’ rights, and provides sufficient financial backing for the litigation. Orr Taylor LLP was appointed as counsel for the proposed class, and an order was granted that no other proceeding in the Ontario Superior Court may be commenced in respect of the allegations in this action without leave of the Court on notice to Orr Taylor LLP. On this motion, the plaintiff is the successful party: the funding agreement is fully approved and the requested procedural protections are granted. However, this is an interlocutory, procedural decision only; no damages, costs, or other monetary amounts were awarded or fixed in favour of the plaintiff or class, and the total monetary award, if any, will only be determined in future settlement approval or trial judgments.