Thank you for your “Exceptional Service”: Recognizing the Role of a Representative Plaintiff in a Class Action

INTRODUCTION

The role of a plaintiff in a representative class action differs from that of a plaintiff in an individual action. The responsibilities assumed by a representative plaintiff are significant and can give rise to pressure, financial risk and public scrutiny. There has been much judicial debate over the question of whether a representative plaintiff should receive some monetary amount in recognition of taking on the role. This article summarizes the Canadian courts' treatment of the issue and considers some recent and notable trends coming out of the Ontario courts.

APPOINTMENT AND ROLE OF A REPRESENTATIVE PLAINTIFF

Class actions require the court's approval of a proposed representative plaintiff. Pursuant to section 5(1)(e) of the Ontario Class Proceedings Act, 1992 (“CPA”)[1], one of the prerequisites for certification is that there is a representative plaintiff that:

i. would fairly and adequately represent the interests of the class,

ii. has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

iii. does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

If the proposed representative plaintiff meets these requirements, and the balance of the certification requirements are met, the court will appoint the proposed representative plaintiff.

Among other roles and responsibilities, the representative plaintiff may contribute to strategic decision-making with class counsel, provide evidence in support of certification and other motions, and function as a conduit between class counsel and the class to ensure that the best interests of the class remain at the forefront of the proceeding.

SPECIAL PAYMENTS TO REPRESENTATIVE PLAINTIFFS (HONORARIA)

Despite playing a more active role compared to other class members, a representative plaintiff is not automatically compensated for this heightened level of involvement. However, the court may, in certain circumstances, approve a form of special payment known as an honorarium at the conclusion of a class proceeding. An honorarium is not an award but a recognition that the representative plaintiff "meaningfully contributed to the class members' pursuit of access to justice".[2]

Although the CPA makes no provision for an honorarium, such payments have been made in many cases. As detailed below, courts across the country have taken slightly differing approaches to requests for honoraria.

In British Columbia, it is common practice for the courts to approve an honorarium request where “competent service” is accompanied by positive results.[3] The rationale is that a modest award is justified on restitutionary principles for a representative plaintiff who has expended time and effort in fulfillment of their duties and who risks exposure to costs in doing so and in recognition of the principle of quantum meruit.[4]

In Quebec, the payments of honoraria in class action proceedings are typically not permitted[5], however, article 593 of the Quebec Code of Civil Procedure[6] allows for the limited compensation of representative plaintiffs for their incurred disbursements (e.g., costs of attending examinations or producing documents).[7]

Cases in Ontario have increasingly moved toward awarding an honorarium to the representative plaintiff only in exceptional circumstances.[8] The exceptional circumstances approach was confirmed by the Ontario Divisional Court in Doucet v. Royal Winnipeg Ballet[9] where the Court set out the following factors to consider when assessing a request for an honorarium to a representative plaintiff:

a. The nature of the case, including whether the representative plaintiff brings forward a claim in which they expose themselves to re-traumatization for the benefit of the class (such as a sexual abuse claim).

b. The nature of the remedies available for the cause of action asserted, particularly cases where even complete success would lead to only a marginal monetary remedy for each class member or none at all.

c. The steps taken by the representative plaintiff, who must do more than take an active role and fulfill the normal steps required in class proceedings. Exceptional circumstances include enduring significant additional personal or financial hardship in connection with the prosecution of the class proceeding.

d. The rationale for the requested payment, which must not be added compensation for losses or damages that fall within the potential remedies available for the causes of action asserted in the claim itself or for the necessary steps to fulfill the responsibilities of a representative plaintiff.

e. The exposure to a real risk of an adverse costs award.

f. The quantum of the requested payment must be modest in general terms and in relation to the remedies available to the class members in the settlement.[10]

The exceptional circumstances approach has been followed by the courts in Alberta, Manitoba, Saskatchewan, Nova Scotia, Newfoundland, New Brunswick and the Federal Court.[11]

In terms of quantum, historically, courts have approved honoraria ranging from $3,500 to $20,000.[12] This “modest” range is intended to ensure that the amount of any separate payment to the representative plaintiff is not disproportionate to the benefit derived by the class members, the effort of the representative plaintiff, and the risks assumed by the representative plaintiff. This amount must be small enough to avoid creating even an appearance of a conflict of interest. The appropriate quantum will vary from case to case, depending on the terms of the settlement or award and the representative plaintiff’s own circumstances. [13] Honoraria may be paid from the settlement funds or in some cases, from class counsel’s approved fees.[14]

RECENT TRENDS IN ONTARIO

The decision to award an honorarium is discretionary. There are eight reported decisions on CanLII in the last year considering the request for an honorarium to the representative plaintiff in a class proceeding in Ontario. Of those eight reported decisions, the court granted the request in five cases and denied the request for an honorarium in three cases.

Factors Supporting the Granting of an Honorarium

Across the five decisions where honoraria were approved, the courts emphasized one or more of the following considerations:

• Exceptional contribution by the representative plaintiff to the advancement of the litigation.[15]
• Emotional or psychological burden, including exposure to re-traumatization[16] when recounting sensitive experiences for the benefit of the class.[17]
• Active and sustained participation, such as reviewing materials, participating in discoveries, or providing meaningful input informed by professional or specialized knowledge. [18]
• Willingness to serve as the public face of the proceeding, including exposure to media scrutiny. [19]
• Modest proportionality[20] of the requested honorarium relative to the overall recovery. [21]
• Transparency and procedural fairness, including advance notice to the class of the intention to seek an honorarium.[22]
• Consistency with similar awards in parallel or related litigation, sometimes supported by principles of judicial comity. [23]

Factors Supporting the Denial of an Honorarium 

In the three cases where the court declined to award an honorarium, the determinative considerations included:

• Lack of evidence of extraordinary effort or contribution beyond what is normally expected of a representative plaintiff[24] and incomplete evidentiary record in support of the request. [25]
• Absence of personal hardship, including no evidence of financial burden, no emotional or psychological trauma, and no meaningful risk of adverse costs. [26]
• No link between the evidence and any alleged re-traumatization[27], particularly where the subject matter of the litigation is commercial or contractual rather than personal or sensitive. [28]

CONCLUSION

Representative plaintiffs remain an indispensable part of the class action process. Without a representative plaintiff, there is no proceeding. As Justice Akbarali recognized in Redublo v. CarePartners, 2022 ONSC 1398, the goals of class proceedings legislation: access to justice, behaviour modification, and judicial economy, are also advanced by granting honoraria to representative plaintiffs in class proceedings. Honoraria can incentivize representative plaintiffs to move beyond serving as mere “figureheads” and instead participate actively throughout the entire class proceedings.[29]

The trend in Ontario, appears to be that requests for honoraria are only granted in exceptional circumstances, reflecting a careful judicial effort to distinguish between ordinary participation and contributions that genuinely exceed what the role of representative plaintiff normally requires. Courts are more inclined to grant the requested honoraria where the evidence shows extraordinary commitment, hardship, or meaningful benefit to the class, but will decline to grant the request in the absence of such factors. Ultimately, honoraria remain a discretionary, and exceptional, form of recognition for exceptional service.

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