By Arshdeep Aulakh, 2l
For survivors of sexual abuse, there are many different routes for seeking justice such as criminal proceedings or suing for financial compensation. Class actions provide another avenue for survivors of institutional or systemic abuse which, for class members who are not required to testify throughout the proceedings, may provide for a less traumatizing process. Nonetheless, there is always room for improvement regarding the experiences of class members involved in these difficult cases.
Authors Sydney McIvor and Brittany Town’s November 2022 paper in The Canadian Class Action Review titled “Towards a trauma-informed approach: adapting class action procedure for survivors of sexual abuse” thoroughly analyzes systemic sexual abuse class actions using a trauma-informed approach. The authors offer five recommendations to enhance the trust, comfort, and reliance of sexual abuse survivors involved in class actions:
- Introduce legislation or specific judicial practices that relieve the traumatic burden of testifying multiple times for representative plaintiffs;
- Create legislation similar to the Canadian Victims Bill of Rights in the civil justice system to offer protection for survivors participating in class actions;
- Enable representative plaintiffs to maintain anonymity if desired;
- Implement an “opt-in” procedure where class members in sexual abuse claims have more control over if and when to pursue a civil remedy from their abusers instead of being limited by short timelines for opting out; and
- Offer an opportunity for class members and people impacted by the class action to provide an impact statement.
In addition to these apt recommendations, I propose a sixth to improve how class actions can help provide justice for sexual assault survivors: the appointment of a non-party who can provide an independent perspective on issues such as settlement and fee approval hearings. By doing so, judges can ensure that settlement claims processes are more trauma-informed, increase access to justice, and encourage meaningful participation in litigation for survivors of sexual abuse. Routinely appointing this “amicus curiae” can help combat the “adversarial void” that often exists in the settlement process.
This blog examines how the Quebec courts recently appointed amicus curiae to allow class member interests to be adequately represented during the tumultuous settlement approval stage of an institutional abuse class action in which class counsel were also requesting a high fee.
What is an amicus curiae?
“Amicus curiae” means friend of the court in Latin. Amicus curiae (or just “amicus” or “amici” (plural)) is a person or group who is not a party to a lawsuit but is appointed as someone who can offer information or expertise that may be useful to the Court in its deliberations on a matter.
The appointment of amicus curiae in class actions is not a new idea. In Bancroft-Snell v Visa Canada Corporation,2016 ONCA 896, the Court appointed amici “to advance the perspective of the unrepresented class members” in a dispute over a fee-sharing agreement between counsel, an issue in which there was no party adverse in interest. Very recently, amicus was appointed in an appeal before the Divisional Court regarding the payment of honoraria to the representative plaintiffs.
The Law Commission of Ontario’s (LCO) July 2019 report titled “Class Actions: Objectives, Experiences and Reforms: Final Report,” headed by Professors Jasminka Kalajdzic and Catherine Piché (as she then was), also recommended the use of amicus in fee approval motions. Included as Recommendation 37, the authors suggest that:
the Act be amended to give the Court the discretion to appoint an amicus curiae to assist the Court in considering fee approvals. The Court should have the discretion to determine payment for the amicus as the Court may deem just.
While this proposal was not incorporated into the recent amendments to Ontario’s Class Proceedings Act, 1992, the door remains open for courts to appoint a helpful friend. This is especially true where the usual adversarial nature of the Canadian legal system is not engaged, such as in fee or settlement approval hearings. In those circumstances, the interests of absent class members are often unrepresented, and the Court could benefit from such expertise or more information about their possible concerns.
How amicus can come to be appointed.
In A.B. c. Clercs de Saint-Viateur du Canada, 2022 QCCA 1224, the Quebec Court of Appeal ordered an amicus curiae to independently present argument regarding the fairness of class counsel’s fee request, following the class action judge’s refusal to approve it. The class action was brought on behalf of people who suffered sexual assaults in Quebec by employees of the Clercs de Saint-Viateur, a Catholic congregation which also ran schools, residences, and summer camps.
In the lower Court’s decision, Justice Davis refused approval of the settlement agreement due to the significant amount of “premiums” charged by class counsel on top of their fees. From the $28 million proposed settlement, class counsel requested $8,048,250.00 in fees – 25% of the total settlement amount plus taxes. After considering many factors such as the expertise of class counsel, reasonableness, the complexity of the matter, and the risk class counsel took in bringing this class action, Justice Davis found that the fee request was excessive. He considered the actual time the lawyers put into the case and found that the premium, or bonus, that class counsel would receive was $5,000,000.00 in addition to their docketed time. Such high fees were found to not be in the interests of class members as they are deducted from the total settlement amount, effectively lowering the amount received by class members.
Because the settlement agreement included a clause that the whole agreement must be approved or it is null and void, the Court did not approve the settlement. The parties were then forced to renegotiate and resubmit a revised agreement for court approval or appeal Justice Davis’s decision to the Quebec Court of Appeal. Class counsel took the latter route.
Class counsel filed an appeal stating that the judge erred in law by not modifying the fees claimed by the lawyers, and erred in fact and law by refusing to approve the fees in their requested amount. The objector who raised concerns about fees at the initial hearing made it known that they could not participate meaningfully in the appeal process without legal representation and did not have the funds to do so. Additionally, the defendant did not intend to make argument on the issue of the reasonableness of fees. Understandably, the Court was concerned about the one-dimensional (or “non-adversarial”) nature of the arguments regarding the issue of fees, and accordingly ordered an amicus to be appointed. This generous allowance highlights the Court’s desire for more well-rounded knowledge, facts, and countervailing arguments on the issues before making decisions that impact unrepresented class members.
Additionally, the Quebec Court of Appeal ordered a publication ban on the name of the objector in all related proceedings, presumably to protect their identity considering the sensitive nature of the proceedings and the similar protection endowed to the representative plaintiff in the class action. Allowing publication bans on the identities of class members (if they desire) in institutional abuse class actions is another example of a more trauma-informed practice, as reflected in the McIvor and Towns piece.
The appeal was heard on March 7, 2023, and the decision is yet to be released. Jean-Philippe Groleau of Davies Ward Phillips and Vineberg was appointed amicus.
The Takeaway? Amicus curiae neutralize the adversarial void.
The LCO Report discusses similar concerns of class members in the settlement process where there is an “adversarial void” in the settlement and fee approval processes. Both class and defendant counsel want their settlement and fee requests to be approved by the Court. They both have a vested interest in settlement approval (class counsel’s fees and the defendant’s certainty in closure), which could arguably have undesirable consequences for some class members.
As such, this void, or “one-dimensional argument”, can often lead to weaknesses in the proposed settlement not being thoroughly examined and scrutinized. While settlements are considered favourable to trials due to the burden of prolonged litigation and uncertainties and risks, they should not come at the expense of adequate compensation for eligible class members. Courts ought to be cautious that a speedy resolution and a speedy payday may come at the cost of class members getting stuck with a flawed settlement that could be more beneficial or representative of their interests. In those circumstances, an amicus can provide a helpful, non-partisan perspective on the ultimate fairness of proposed settlements without an active interest in the case’s outcome.
In cases dealing with institutional abuse or harms like sexual abuse, the appointment of an amicus curiae is especially beneficial and arguably necessary to protect the interests of class members in fee and settlement approval motions. The adversarial void may create situations in which class counsel and the defendant agree on settlement terms that may not be in the best interests of some class members. Those absent class members who, for various reasons such as privacy concerns or lack of resources, do not want to come forward, can be better protected by the appointment of amicus. This is a significant concern for sexual abuse survivors who have been harmed, abused and exploited by those with authority in systemic and institutional settings. The class action process should not be yet another abuse of power.