GUEST BLOG BY SUZANNE CHIODO, ASSISTANT PROFESSOR, OSGOODE HALL LAW SCHOOL
Yesterday morning, the Ontario Divisional Court released its decision in Doucet v The Royal Winnipeg Ballet,[1] an appeal involving additional payments to representative plaintiffs (‘honoraria’) for their service to the class. This issue has been subject to conflicting treatment at the Superior Court level[2] (and in the appeal courts in the United States),[3] and I address it in greater detail in an article that is forthcoming in the Osgoode Hall Law Journal.[4] The Divisional Court had an opportunity to provide some clarity and progression in this area of the law. Unfortunately, it let that opportunity pass by.
The class proceeding in Doucet, which involved sexual assaults by a photographer at the Royal Winnipeg Ballet, settled last year. Justice Perell of the Ontario Superior Court approved the settlement and class counsel fees, with one exception: His Honour refused to approve the requested payments of honoraria to the representative plaintiffs and certain class members who had stepped forward as witnesses.[5] Justice Perell decided that the practice of awarding honoraria “should be stopped as a matter of principle”.[6] His Honour stated that the practice is contrary to the administration of justice because it involves paying litigants for providing legal services and appearing as witnesses; it gives the appearance that the representative plaintiff’s contribution is tainted by self-interest; there is no way of testing the evidence in support of the honorarium request; and the practice is “repugnant” and “tawdry” because the honorarium request is dwarfed by the fee request, and it creates a grading of the plaintiff’s contribution in comparison to other class actions.[7]
By contrast and in a subsequent decision,[8] Justice Akbarali held that additional payments advance the three normative goals of the CPA[9] by incentivizing representative plaintiffs to step forward and to monitor class counsel, compensating them for being the ‘face’ of the class action and for expending time and money for the sake of the class.[10] She held that additional payments should be awarded any time the representative plaintiff has provided competent service coupled with results to the class.[11]
The Divisional Court considered these two differing approaches to honorarium payments. The Court’s decision, however, upheld the approach in Ontario to date: that honoraria should be modest and proportionate in quantum, and that honoraria should only be awarded in rare circumstances when representative plaintiff service is ‘exceptional’.[12] The case law outlines a number of indicators as to what might be ‘exceptional’,[13] including active involvement in the initiation of the litigation and retainer of counsel; exposure to a real risk of costs; significant personal hardship or inconvenience in connection with the prosecution of the litigation; time spent and activities undertaken in advancing the litigation; communication and interaction with other class members; and participation at various stages in the litigation, including discovery, settlement negotiations and trial.
However, the Ontario approach has led to vastly inconsistent and unpredictable interpretations as to what kind of service counts as ‘exceptional’. Some courts have rejected the requirement that the representative plaintiff’s service be exceptional, yet have still applied the above factors when determining quantum.[14] Others have agreed that exceptional service is required, but apply the above factors as part of a global assessment of exceptionality and quantum.[15] Others have emphasized some factors over others, or have simply awarded the requested honorarium amount with no analysis at all.
Analyses of quantum tend to be perfunctory and vague, because the exceptionality requirement provides little guidance as to how much to award a representative plaintiff. While the Divisional Court’s decision requires that payments be modest and proportionate, this can look very different in different cases. Some payments can be modest and not proportionate (as in McCallum-Boxe v Sony,[16] where the representative plaintiffs were awarded $4,500 compared to a settlement of $8,000 total), or proportionate and not modest (as in Manuge c Canada,[17] where the representative plaintiff was awarded $50,000 in a settlement that totalled $887 million). The Divisional Court in Doucet determined that the main representative plaintiff (but not the representative plaintiff of the Family Class, nor the class member witnesses) should receive an amount for her service, but found that the $30,000 requested was not proportionate to the $88,000 in damages being awarded to class members. The Court reduced the award to $7,500 – an amount that, with little additional analysis, seems to have been picked out of the air.
The Divisional Court decision simply confirmed the prevailing approach in Ontario, when more guidance is very much needed. More fundamentally, the decision failed to recognize the fundamental distinction between class proceedings and regular litigation. Not only are class proceedings disproportionately burdensome on the representative plaintiff, but they also advance important societal goals and are crucial in bringing about societal change and addressing historical wrongs. Representative plaintiffs who are willing to step forward to bear such burdens in order to better others’ situations should be rewarded with more than just a token payment.
Suzanne Chiodo is an Assistant Professor at Osgoode Hall Law School. Her areas of teaching and research specialization are in civil procedure, class actions, and access to justice.
[1] 2023 ONSC 2323 [Doucet].
[2] Doucet v The Royal Winnipeg Ballet, 2022 ONSC 976 [DoucetONSC]; Redublo v CarePartners, 2022 ONSC 1398 [Redublo].
[3] Johnson v NPAS Solutions, LLC, 975 F3d 1244 (11th Cir 2020); Shane Group Inc v Blue Cross Blue Shield of Michigan, 833 Fed Appx 430 (6th Cir 2021); In re Apple Inc Device Performance Litigation, 2022 WL 4492078 (9th Cir 2022); In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 2023 WL 2403615 (2nd Cir 2023).
[4] Suzanne Chiodo, “Tawdry or Honourable? Additional Payments to Representative Plaintiffs in Ontario and Beyond” (2023) OHLJ (forthcoming).
[5] Doucet ONSC, supra note 2.
[8] Redublo, supra note 2 at para 114.
[9] That is, access to justice, judicial economy, and behaviour modification.
[10] Redublo, supra note 2 at para 111.
[11] Ibid at para 114. See also Parsons v Coast Capital Savings Credit Union, 2010 BCCA 311.
[12] Doucet, supra note 1 at para 92.
[13] Ibid; Robinson v Rochester Financial Limited, 2012 ONSC 911 at para 43.
[14] Redublo, supra note 2 at para 114; Seed v Ontario, 2017 ONSC 3534, at paras 18-20 [Seed].
[15] Kalra v Mercedes Benz, 2022 ONSC 941 at paras 34-40 [Kalra]; Aps v Flight Centre Travel Group, 2020 ONSC 6779 at paras 42-46; Goyal v Niagara College of Applied Arts and Technology, 2020 ONSC 739 at paras 41-43; McIntosh v Takata Corporation, 2020 ONSC 968at paras 40-42; Rezmuves v Hohots, 2020 ONSC 5595 at paras 44-47.
[17] 2013 FC 341.
