Getting It Right In Ontario Courts' Treatment Of Honoraria ' Doucet And Redublo

• Published date: 10 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Class Actions, Trials & Appeals & Compensation
• Law Firm: Siskinds LLP
• Author: Jared Rosenbaum

In the event of a successful monetary settlement in a class proceeding, courts may order that additional compensation, in the form of a payment called an honorarium, be paid to a representative plaintiff who has meaningfully contributed to advancing litigation on behalf of the class.

Honoraria have not been awarded routinely in Ontario. The case law establishes that the payment of an honorarium is "exceptional" and should only be approved where a representative plaintiff has gone above and beyond the normal course in assisting with the prosecution and settlement of a class action. The amount of the honorarium is also at the discretion of the court. In Ontario, while courts have awarded up to $50,0000, honoraria are typically lower, ranging from $5,000 to $10,000.

Up until very recently, the law in Ontario has trended towards expanding the availability of such awards, with courts recognizing the positive incentive honoraria create for representative plaintiffs to engage in the litigation in a meaningful, rather than notional, way. Put differently, Ontario law is trending towards the approach in British Columbia, where services of special significance beyond the usual responsibilities of a representative plaintiff are not required. In BC, where a monetary settlement is achieved, competent service coupled with positive results is sufficient to recognize a representative plaintiff by way of an honorarium.

Justice Perell's recent decision in Doucet v The Royal Winnipeg ("Doucet") has taken Ontario law in another directly entirely. In Doucet, which was an institutional abuse case, Justice Perell declined to make any award to the representative plaintiff and held that "the practice [of awarding honoraria] is wrong" and "should be stopped as a matter of principle".

Less than three weeks after the release of Doucet, Justice Akbarali issued her decision in Redublo v CarePartners ("Redublo"), a privacy breach class action. She takes a decidedly different approach, disagreeing with the rationale underlying Doucet and expanding the availability of honoraria in a way that is consistent with the developing line of Ontario cases and the BC approach.

All of this leaves a lawyer wondering, what is right, and what is wrong? In the author's opinion, Justice Akbarali got it right in Redublo.

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