whether “exceptional circumstances” justified an order under
s. 28.1(8). I cannot accept this interpretation of the agreement.
 Nor, in my view, does the phrase “exceptional circumstances
that may arise in this case” assist the appellants. The phrase
simply recognizes that as of the date of the agreement no determination had been, or indeed could have been, made with respect
to the existence of “exceptional circumstances”. That determination is for the court at the time the application for approval of the
payment is brought.
( ii) Is paragraph 16 unenforceable?
 The appellants next submit that if the motion judge properly
interpreted para. 16 of the contingency fee agreement, the agreement is unenforceable as contrary to s. 28.1(8) of the Act. The
appellants submit that the Act, and in particular s. 28.1(8), is
consumer protection legislation designed to protect clients who are
often at a very real disadvantage when negotiating fee arrangements with their lawyers: see Zeppieri & Associates v. Gupta,
 O.J. No. 5355, 2016 ONSC 6491 (S.C.J.), at para. 22.
 The appellants further submit that payment of a portion of
the client’s costs as part of the lawyer’s contingency fee is very
much the exception under the Act, and is limited to situations in
which there are “exceptional circumstances”. The appellants
argue that to properly protect themselves, clients must be able to
challenge a lawyer’s claim that “exceptional circumstances” justify the payment of the premium. A contingency fee agreement
which requires the client to commit to supporting the lawyer’s
application at a point in time when the client cannot make an
informed assessment of the circumstances effectively allows the
lawyer to contract out of one of the two protections provided to
the client by s. 28.1(8): see Jean Estate v. Wires Jolley LLP
(2009), 96 O.R. (3d) 171,  O.J. No. 1734, 2009 ONCA 339,
at para. 82.
 I accept the appellants’ characterization of the Act as consumer protection legislation. However, the Act is also intended to
facilitate access to justice by providing for contingency fee agreements. These agreements allow clients who could not afford to
retain counsel through traditional retainers to secure legal representation. Contingency fee agreements have proven particularly
valuable in complex, expensive litigation in which the outcome is
very much in doubt.
 To facilitate access to justice, the Act contemplates fees
that may include a payment by way of a premium of an amount
from any costs paid to the client. The Act imposes no limitation
on the parties agreeing to this payment. Section 28.1(8) does,