|
Class Actions - Honourarium. Doucet v The Royal Winnipeg Ballet [for numbered case cites see the link]
In Doucet v The Royal Winnipeg Ballet (Div Court, 2023) the Divisional Court considers the class action practice of awarding honourariums to representative plaintiffs:[3] This appeal relates to the practice of awarding what are called “honorariums” to representative plaintiffs in class proceedings. The class proceedings judge expressly departed from a practice of commonly approving these payments. He correctly observed that these payments have become routine despite the jurisprudence holding that they should be rare. The appellants also propose to depart from the prior jurisprudence, submitting that these payments should be routine.
[4] For the reasons set out below, the appeal is granted in part, with respect to the lead representative plaintiff Ms. Doucet, and denied with respect to the other four proposed recipients of these payments. The principles arising from the prior jurisprudence that these payments should be rare, not routine, and should be modest, foster the goals of class proceedings while addressing significant concerns about an apparent conflict of interest between recipients of these payments and other class members. These principles have long been established and should be followed.
....
[15] In my view, the overarching question is a matter of principle: should there ever be an honourarium awarded to a representative plaintiff or other class member/witness in a class action settlement? The class proceedings judge recognized the contrary law and said no. The related question is, if there is the possibility of such an award, what principles should apply? ... The court continues to analyse this issue extensively at paras 16-105.
. Fresco v. Canadian Imperial Bank of Commerce
In Fresco v. Canadian Imperial Bank of Commerce (Ont CA, 2024) the Ontario Court of Appeal dismissed a class action plaintiff's fee and honorarium appeal.
Here the court considers the issue of a class representative's 'honorarium':Part 2. HONORARIUM
[104] Class counsel sought a $30,000 honorarium for Ms. Fresco on the basis that this was consistent with her many years of assistance and courage. They requested that it be paid from class counsel’s fees and not from the class recovery. The motion judge refused the request.
[105] In appealing from that decision, the appellants submit that the motion judge made two errors in refusing to grant her an honorarium. First, they submit that the motion judge did not give sufficient weight to the courage she displayed and the risk taken on by her. Second, they assert that the motion judge’s decision was contrary to precedent as other courts have awarded honoraria to plaintiffs who were less extensively involved over shorter periods of time and who faced less personal risk.
[106] Amicus opposes the request stating that it amounts to improper interference with the motion judge’s exercise of discretion to refuse to award an honorarium. Relying on Doucet v. The Royal Winnipeg Ballet, 2023 ONSC 2323 (Div. Ct.), Amicus submits that honoraria should be reserved for exceptional cases where such an award will serve access to justice. I agree with this submission.
[107] In Doucet, in determining that an honorarium requires exceptional circumstances, the Divisional Court undertook an extensive review of the jurisprudence on honoraria.
[108] In Baker Estate v. Sony BMG Music (Canada Inc.), 2011 ONSC 7105, Strathy J., as he then was, emphasized that this type of payment “is exceptional and rarely done… It should not be done as a matter of course.” He held, at para. 95, that “compensation should not be awarded simply because the representative plaintiff has done what is expected of him or her. It should be reserved for cases…where the contribution of the representative plaintiff has gone well above and beyond the call of duty.”
[109] In Sutherland v. Boots Pharmaceutical Plc., (2002), 21 C.P.C. (5th) 196 (Ont. S.C.), at para. 22, Winkler J., as he then was, observed that “where a representative plaintiff benefits from the class proceeding to a greater extent than the class members, and such benefit is as a result of the extraneous compensation paid to the representative plaintiff rather than the damages suffered by him or her, there is an appearance of a conflict of interest between the representative plaintiff and the class member.” He held that while the work of the representative plaintiffs in that case was commendable, the extra compensation gave rise to an appearance of conflict of interest between the representative plaintiffs and other class members. In McCarthy v. Canadian Red Cross Society, [2007] O.J. No. 2314 (S.C.), at para. 20, Winkler J. held that “it is not generally appropriate for a representative plaintiff to receive a payment for fees or for time expended in the pursuit of the action.”
[110] I agree with this commentary and that exceptional circumstances should exist to justify the award of an honorarium to a representative plaintiff.
[111] Factors that might qualify as exceptional circumstances could include exposure to a real risk of costs or significant personal hardship in connection with the prosecution of the action. The latter can be seen in the example provided by the Divisional Court in Doucet of a representative plaintiff in an abuse case who “put their personal experience forward, reliving their trauma, while relieving other class members from having to do so”: at para. 58.
[112] As the Divisional Court stated at para. 70, a representative plaintiff should be committed to fulfilling their responsibilities, including active involvement in every step of the litigation including the settlement of the litigation, without seeking added compensation. An additional payment should be available only where the representative plaintiff can demonstrate a level of involvement and effort that is “truly extraordinary”: at para. 71.
[113] Turning to this appeal, I am unable to conclude that the motion judge’s decision on the honorarium was unreasonable or infected with error.
[114] The motion judge described Ms. Fresco as “admirable, praiseworthy, courageous, diligent and helpful” but declined to award her an honorarium. He reasoned that she was under no exposure to a real risk of costs; there was no significant personal hardship or inconvenience in connection with the prosecution of the litigation; and although she was commendably actively involved in the initiation and prosecution of the litigation and in communicating with class members, her involvement was not so extraordinary to justify an honorarium.
[115] In oral argument, the appellants accepted that the motion judge accurately outlined the principles governing the award of an honorarium and also acknowledged that none of the factors relied upon by the motion judge were inaccurate.
[116] It was well within the motion judge’s discretion to determine that an honorarium was not justified. The grounds of appeal advanced by the appellants do not lead to a contrary result. The fact that other judges have seen fit to award honoraria based on the facts before them is a function of the exercise of a discretion. Here, the motion judge sufficiently considered the relevant factors and exercised his discretion in declining to award an honorarium on the facts of this case. I see no reason to interfere with that determination and therefore would dismiss this ground of appeal.
|
