Same As It Ever Was? Divisional Court Sets Out Ontario Law On Honoraria In Doucet Et Al. v The Royal Winnipeg Ballet Et Al.

• Law Firm: Siskinds LLP
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Class Actions
• Author: Jared Rosenbaum
• Published date: 15 May 2023

In March of 2022, we blogged about honoraria and observed that while Ontario was trending towards a more permissive approach where such payments are commonly approved, Justice Perell's decision in Doucet v The Royal Winnipeg Ballet, 2022 ONSC 976 ("Doucet"),was an outlier that took Ontario law in the opposite direction, condemning the practice altogether.

Doucet was a case about mass sexual abuse at the Royal Winnipeg Ballet. It is the kind of case where an honorarium is reasonable to request'in addition to the significant duties that come with being a representative plaintiff, in sexual abuse cases, representative plaintiffs are retraumatized by reliving their experiences. It is an important job, and someone must do it for the class action to proceed.

On the motion for settlement approval in the lower court, class counsel requested that $70,000 be deducted from the settlement for payments to Ms. Doucet, her common law partner, and three other class member witnesses in recognition of their service to the class. This was a relatively big ask, on the high end of historical honoraria. However, rather than using the court's discretion to reduce that amount, Justice Perell (who had approved honoraria prior to this decision) declined to make any award at all. In doing so, he departed from the established Ontario jurisprudence, holding that "the practice [of awarding honoraria] is wrong" and "should be stopped as a matter of principle".

Our last post contrasted Justice Perell's approach in Doucet with the one taken by Justice Akbarali a few weeks later in Redublo v CarePartners, 2022 ONSC 1398 ("Redublo"), a case regarding a cyber breach. In Redublo, Justice Akbarali granted the payment of a $5,000 honorarium to each representative plaintiff and went the opposite direction from Doucet'holding that honoraria should be awarded wherever "a representative plaintiff, or other involved class member, has provided competent service coupled with positive results to the class". Justice Akbarali disagreed with the concerns Justice Perell raised in Doucet, and concluded:

not only would I continue the practice of awarding honoraria, but in my view, the approach adopted by the British Columbia Court of Appeal, and which has been creeping into Ontario...better recognizes the role that honoraria can play in advancing the objectives of the CPA (Redublo at para 113)

We said Justice Akbarali's approach was better because it furthered the objectives of class proceedings by...