When two sophisticated parties enter into a contract – whether they are multinational corporations, established professionals, or experienced legal counsel – the principle of freedom of contract must be respected. A judge should not have the power to re-write the terms of a fee agreement between a lawyer and their client after the fact simply because the client later believes the outcome seems too generous in hindsight.
This principle is as old as contract law itself: the role of the courts is to enforce agreements, not re-write them.
A recent Ontario court decision slashing a negotiated contingency fee from $510 million to $23 million – a 95% write down – in the Robinson Huron Treaty settlement case runs contrary to that fundamental tenet.
Consider a simple example. If a homeowner agrees to pay their real estate agent a 5% commission to sell their home, that is the bargain they struck. If the home sells in one day, the homeowner cannot later ask a judge to reduce the commission because the agent’s success came too quickly. The contract does not promise a fee based on effort, but on results. Courts do not, and should not, retroactively adjust terms based on whether the outcome feels too good for one party.
Likewise, if an employer pays its sales associate a 10% commission on all sales generated, and that salesperson lands a “whale” of a client, the employer cannot later claim they never thought their employee could do that and renege. The agreement was clear: 10% of all sales, no matter the size. Success beyond expectations does not justify re-writing the fee arrangement.
Contingency fee agreements between lawyers and clients are no different. They are explicit contracts between sophisticated parties who understand the risks and potential rewards of litigation. Such law firms hire additional lawyers and staff to service such a complicated case. Such law firms decline other cases and clients to devote their time, resources and energy to service such a demanding case. Such law firms shoulder immense risk, often investing years of time and millions in resources, with the understanding that they will only be compensated if they succeed.
In return, such clients agree to pay an agreed percentage of the recovery, if any.
In the Robinson Huron Treaty case, the lawyers agreed to a 5% contingency fee – the same 5% that any real estate agent or business developer might earn for success. That fee was clear, contractual, and voluntarily accepted by the parties involved.
As for the outcome, the court wrote:
“[6] The Legal Team that acted for the Fund 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.
[7] The Legal Team did great legal work. Its member lawyers represented the clients zealously, resolutely, passionately, and with extraordinary success.
[8] Apart from issues when dealing with its own remuneration, the Legal Team acted in the best traditions of the independent bar of Ontario to bring access to justice to clients who had been unable to obtain their fair measure of civil justice for more than 150 years.
[9] The $10 billion settlement achieved represents a degree of success beyond anyone’s realistic assessment of the likely outcome of the litigation when it was first proposed.
[10] And that is the nub of the issue that is the subject of this proceeding and this decision.
[11] The issue before me in this proceeding is whether the Legal Team, as licensed legal professionals and members of the bar of Ontario, are entitled to a whopping $510,000,000.00 as a 5% contingent fee on the $10 billion settlement under the terms of a Partial Contingency Fee Agreement with the Fund dated June 17, 2011.”
The court then reduced the agreed-upon $510 million fee to $23 million, writing that “a lawyer’s professional retainer is not a lottery ticket offering a bonus prize of generational wealth.”
But that misses the point entirely. It is not a “lottery ticket”; it is a contract. The lawyers assumed tremendous risk over 17 years, and they achieved an extraordinary result: a $10 billion settlement that remedied over a century of injustice. Their compensation was directly tied to that success, as the agreement specified.
What makes this decision especially troubling is that it treats lawyers differently from other professionals. No judge would dream of re-writing a successful business contract, a commission agreement, or a real estate deal between experienced parties because one side’s success exceeded expectations. Yet that is exactly what happened here.
By retroactively reducing the fee by 95%, the court effectively sent the message that contracts involving lawyers are subject to a different standard – that judges, not clients and counsel, ultimately (and retrospectively) decide what is reasonable. This undermines commercial certainty and risks discouraging lawyers from taking on high-stakes, high-risk public interest litigation in the future.
If freedom of contract means anything, it must apply equally to all. A deal is a deal, even when – and perhaps especially – one side’s success exceeds what anyone imagined at the outset.
Contracts between sophisticated parties are not moral judgments; they are business agreements. Courts exist to enforce them, not to revise them after the fact. Whether it’s a real estate commission, a sales bonus, or a contingency fee, the rule must be the same: the parties are bound by the terms they negotiated.
To do otherwise is to invite uncertainty, to punish success, and to erode the very foundation of commercial law. Judges should not re-write contracts – even when the outcome ‘looks’ like a windfall. Because in every field of commerce, including the law, a deal is a deal.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
Editorial note: This article was first published on LinkedIn in November 2025 and is republished here for reference.
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