Document Type

Article

Publication Date

2023

Abstract

Additional payments to representative plaintiffs upon the resolution of a class action are widespread in Ontario and elsewhere. However, this subject has received very little attention from appellate courts (at least in Canada), law reformers, and academics. Two conflicting judgments from the Ontario Superior Court have put a spotlight on this practice, however, and it will soon be receiving appellate treatment. The practice has also recently been subject to conflicting appellate decisions in the US. This brings to the fore crucial questions not only about the purpose of such payments, but also about the purposes of class actions in general.

This article begins with a brief overview of the subject of additional payments (usually called ‘honoraria’ in Canadian class actions), including the role of the representative plaintiff. Section II considers the threshold question of whether additional payments should be awarded at all, in light of their normative goals and the concerns reflected in the case law. Section III discusses the doctrinal and theoretical basis for additional payments, as well as questions of quantifying those payments and the source from which they should be taken. Section IV proposes a structure for the awarding of additional payments, which is based on the representative plaintiff’s time and expenses but also pursues a trauma-informed approach. Section V concludes.

This article brings conceptual clarity to an overlooked area of class actions and provides practical guidance to judges and lawyers. It therefore contributes to our knowledge about class actions and our principled pursuit of them. As two lawyers from an Ontario defence-side firm recently stated, “[e]fforts to identify a brighter line that representative plaintiffs must pass, on compelling evidence, before they are entitled to honoraria payments may be welcomed by many class actions judges.” This article identifies that bright line.

Comments

Osgoode Hall Law School Journal, Forthcoming

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