A.  INTRODUCTION

Under the Ontario Class Proceedings Act, 1992 (“CPA”) [1], the Representative Plaintiff (“RP”) is a member of the class that in most instances commits to a bigger responsibility than all other class members.  Under section 5(e) of the CPA:

(e) there is a representative plaintiff or defendant who,

(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. 1992, c. 6, s. 5 (1).

The CPA is clear in that the RP not merely put his/her name to proceedings.[2]  Ideally, the undertaking is one of giving instructions to counsel and making decisions that affect the rights and potential success for the whole of the class.[3]  In many situations the RP is the driving force in identifying the claim, choosing counsel, advancing the claim and in bringing the proceeding to result.[4] In Ontario courts show reluctance in awarding more compensation to the RP and where there is quantum meruit[5] basis for this higher compensation, portions of disbursements are usually awarded.[6]  At the far end of the deleterious effects weighing against more compensation for RPs is the potential for corruption similar to what lead to the conviction of top Securities Class Actions counsel in United States (US).[7]

There are arguments to be made for and against a more liberalized access of an RP to more compensation than the rest of the class.  Premise in support of more compensation is the incentive that may seem necessary to motivate individuals would otherwise not take on the responsibility and potential liability.  More compensation may only seem fair for individuals who have put time and effort away from their daily living activities to contribute to a cause through which every other class member may be enriched with little effort especially where the compensation is small.[8]  On the other hand, another question that must be addressed is why the RP should get more compensation in Cy-près distributions where no one in the class would get any pay out for example.  There is a possibility for bringing the administration of justice into disrepute when the RP could always access a greater level of compensation than the rest of the class who may have been harmed hypothetically in the very same way because of the Defendant’s conduct.  The other concern is that greater compensation for the RP would risk creating “plaintiff mills” such that lead to Private Securities Litigation Reform Act by the US Congress.[9]  The experience of criminal convictions for some of the top class actions lawyers in the US indicates the potential for corruption.  It may be fair to consider the minute possibility for RPs in Ontario to benefit from judicial decisions in the same way that has landed these US counsel in prison.[10]  It is possible to assess what courts should consider when deciding the net outcome of liberalizing the test for awarding more compensation to the RP beyond other class members by balancing the deleterious and salutary effects of providing more compensation to the RP.

1. B.  POTENTIAL FOR DELETERIOUS CONSEQUENCES

1)    Has Judicial Discretion already occupied the Field? 

It is possible to argue that an RP may derive benefits from performing his/her role and hence make further compensation unnecessary.  These may include psychic benefits such as the pleasure of having his/her name represented by class counsel, or participating in an “interesting and stimulating undertaking.”[11]  The RP also benefits, along with other class members, from the compensation that a successful litigation would produce.[12]  Evidently, the mere amount of time and effort that is spent by an RP is not the only question that must be addressed.

In Huras v Primerica Financial Services Limited[13]an agreement on settlement was reached which provided small compensation to each member of the large group of class members.[14]  The settlement provided for additional compensation to be paid to the Ontario and British Columbia RPs – $3000 and $2000 respectively.[15]  By way of contract, in Sutherland, Justice Winkler disallowed a claim where the RP sought compensation for work related to the administration of the settlement fund which was not strictly “necessary” and did not result in any monetary gain to the class members.[16]  Meanwhile, in some cases it was decided that class RPs are entitled to be reimbursement when they financially contribute to the financing of the litigation.[17]  In addition if class members are going to assist the administration of a settlement fund, they were entitled to be compensated for their out-of-pocket expenses.[18]  The judiciary has taken the quantum meruit idea and through judicial interpretation of the concept on some occasions award RPs for their work.  Cases are evaluated on their merits.  The status quo argument is that judicial discretion is the way to balance the polycentric effects of more compensation to the RP.

2)  Conflict of Interest between the RP and the Rest of the Class in its Clearest Form: The Cy-près Settlement

 

In Sutherland, Justice Winkler raises the caution that more compensation for the RP who benefits from the class proceeding to a greater extent than the class members beyond the damages suffered by him/her would create an appearance of a conflict of interest between the RP and the class members.[19]  He notes that a class proceeding cannot be seen to be a method by which individuals can seek to receive personal gain beyond any damages.[20]  Hence, the appearance of a conflict of interest is something our Justices carefully consider.  Although it is reasonable to suggest that the conflict would be difficult to measure since if the RP is motivated and fights for the incentive award, it may be more likely that the lawsuit may succeed.  Incentive awards may help increase competition amongst class members and the most eligible candidates may be able to work as an RP which would in turn promote access to justice, judicial economy, and behaviour modification[21] for the whole class.  At its heart, RP – class member’s relationship is a symbiotic relationship and the conflict of interest concern requires further study.

In Garland[22] where the court settlement was in the form of Cy-près, the RP, Mr. Garland requested over $95,000 of compensation and with consent of counsel on further appeal he eventually received $95,000 in the form of disbursement.[23] Although there was no precedent for an award of such an amount in Ontario, the presiding Justice Cullity was satisfied with Mr. Garland’s contribution to the success of the proceeding to an extent that exceeded significantly what might properly have been expected of the RP in such a case.[24]  On motion to approve settlement, RP sought compensation for 1,584 hours spent on case over 12 years, estimated that time cost him between $102,960 and $134,640 in lost income from his business.[25] Contribution related to functions necessary for preparation or presentation of case and resulted in direct financial benefit to class.[26]  Mr. Garland took initiative in seeking legal advice and in instructing counsel to commence proceedings and was instrumental in keeping legal team together when class members sought to withdraw from proceedings.[27]  Justice Cullity states in paragraph 42 of his judgement that in Sutherland, the recovery was $2.25 million and the RP had requested $80,000 to be paid out of the amount recovered.  In distinguishing Windisman[28], Winkler J. had stated that in Sutherland the work of the RP was unnecessary to the preparation or presentation of the case. Indeed, their work did not begin until after the settlement had been structured.[29]  That the work of the RPs did not result in any monetary success for the class and to be compensated in the manner requested they would be the only class members to receive any direct monetary compensation. The entire settlement is in the form of Cy-près distribution he argued. In Garland, the RP was found to have satisfied the test stated in Windisman and in the same way in which counsel is entitled to monetary compensation while every class member has to be satisfied with the Cy-près distribution the RP also received monetary award.  The test has been set narrowly because of comments of Justice Winkler with respect to the possible inconsistency between the concept of a Cy-près distribution and an award of an amount of compensation to an RP.   However, in Garland, Justice Cullity accepts that there is a chance for an appearance of conflict of interest that could arise if such compensation were to be awarded routinely.[30]  However, because the test was set strictly, the judicial discretion to award compensation in a Cy-près in distribution Garland would not open the flood gates of conflict of interest amongst class members.

The concern regarding a judicially invented inherent conflict of interest amongst class members and the RP if awards of compensation were to be liberally provided to the RP has led to the narrow Windisman test.  This deleterious effect for a conflict of interest is most exemplary when a Cy-près distribution is negotiated for the class.  A strong argument continues to lurk against liberalizing the test for more compensation given its potential for creating a conflict of interest amongst class members especially in cy-près distributions.

3) RPs in the United States and the potential for corruption

It is fair to suggest that perhaps the media coverage of the 2007 convictions of plaintiff counsels in a large US Class Actions Law Firm has reduced the reputation of plaintiff-side lawyers in the eyes of the public. [31]  When top Class Actions counsel are indicted for creating “plaintiff mills,” it is possible to imagine that there may also be a minute risk that courts may in their own way help develop professional plaintiffs if they were to provide a liberal test for allowing compensation on a systematic basis to all RPs.  The US Congress fully banned “incentive awards” to RPs through Securities Litigation Reform Act (PSLRA) of 1995.[32] A potential deleterious effect of compensation beyond the rest of the class is the possibility of individuals merely seeking profit to race towards courtrooms seeking the position of RP.

C.          SALUTARY EFFECTS WEIGHING IN FAVOUR OF MORE COMPENSATION

1)    Level of RP’s Responsibility and Liability

           

The initial report of the Ontario Law Reform Commission (OLRC) identified access to justice, judicial economy, and behaviour modification as the central role of suits proceeding under the CPA.[33] Such goals would only be fulfilled with the presence of appropriate RPs with the level of incentive to take on the burden and liability that is inherent in the RP.  It may seem only fair that a successful litigants fighting with his litigation counsel team to also be reimbursed especially in cases where a Juris Doctor degree may be the only thing separating the counsel and this hypothetical exemplary RP.

An RP tends to devote a great amount of time in litigation in comparison to the “absent” members of the class.[34]  The RP must swear affidavits, and may be subjected to cross-examination even before class certification stage is decided.[35]  In Windisman[36]the court reasoned that although ordinarily, the RP was not entitled to be compensated for the time and effort expended in relation to prosecuting an action, there was an important distinction to be drawn with reference to class proceedings.  Since the RP undertakes the proceedings on behalf of a wider group and that wider group will, if the action is successful, benefit by virtue of his/her effort as the plaintiff class would be enriched at the expense of the RP to the extent of the time and effort.  Hence by showing that he/she gave an active and necessary level of assistance in the preparation or presentation of the case and that such assistance resulted in financial success for the class, this RP may be compensated on quantum meruit bases for the time spent.[37]  This decision allowed for a discretionary level of awarding an RP with compensation beyond the rest of the class because of a high level of dedication and effort.

It is very clear that RPs incur costs in performing their role.  Even “figurehead” plaintiffs incur the costs of learning about the case, as they must display some familiarity with and responsibility for the case in order to satisfy section 5(e)(i) requirement to “fairly and adequately represent the interests of the class.”[38] Defendants also typically take the deposition of the named plaintiff which is an experience that can be time consuming and demanding to someone not familiar with the legal system.[39]  Named plaintiffs also run a slight, but potentially worrisome risk of being saddled with sanctions if the litigation turns out badly and they are not indemnified by class counsel.[40]  These costs can be significantly greater when the RP assumes a more active role in selecting or supervising counsel, as in the case of private securities litigation or as the court in Windisman suggests in situations when the RP may indeed be seeking to meet the test for compensation beyond rest of the class.

Furthermore, in some cases such as pattern or practice employment discrimination actions the RP may also experience dangers in the form of reprisal or loss to reputation.[41]  The level of risk and responsibility suggests the obvious danger for a net loss to the RP.  Historically in Ontario, this additional work is not compensated:  that is, “for the purpose of assessing entitlement to damages, the RP is treated like any other class member.”[42]  However, a strong argument can be made for the salutary effects of providing an RP compensation that reimburses their dedication and hard work.  Especially in situations where an RP- the only member of the class that has to show extraordinary devotion and effort – the courts should balance the factors in favour of liberalization of the Windisman test.

2)    The Services to Access to Justice by Providing Individuals with Necessary Incentive for Acting as RP

At its heart, the balancing that is necessary seems to be to avoid a situation where legislators need to step in to avoid the danger of courts developing “professional plaintiffs” or provoking conflict of interest between class members and the RP for example – as was necessary in the US Securities Actions – and on the other hand providing individuals with the necessary incentive to undertake the representation and presentation of the interests of the class as a whole.   The reality is that the RPs must swear affidavits, and may be subjected to cross-examination even before class certification is granted.[43]  The RP alone will be subjected to document discovery and examinations after discovery at the initial stage of the proceeding.[44]  Commentators working on the plaintiff side provide us with their experience arguing that RPs are not usually individuals who assume the role for a “quick buck.”[45]  These commentators further suggest that people with only monetary interests are more likely to stand back and let someone else do the work for them RPs tend to be firmly committed to the particular cause at hand. [46]  Perhaps to provide individuals with a fair incentive to become involved as an RP for the sake of judicial economy, behaviour modification, and access to justice of a whole class of people can be evaluated as a mitigating factor in response to the concern of Ontario Justices concerned about inciting conflict of interest between an RP and the class.  The problem is that despite even the strongest of convictions, an individual will think twice before agreeing to take on the role of the representative plaintiff.  In particular, who would risk a cost if their role is in cases where no monetary or at most a small amount of money may be recovered as was the case in Markson and Cassano[47]?

There are also lessons to be learned about providing an incentive award to RPs through a more liberalized test from our neighbours to the south.  Prohibition of compensation beyond the rest of the class in the Private Securities Litigation Reform Act (PSLRA) by the US Congress was strongly attacked by a comprehensive quantitative study in 2006.[48]  Although opinions change based on whether a paper is written by practitioners and academics on various sides of the issue, this paper seemed to provide a fair and balanced view on the negative consequences of the PSLRA prohibition of incentive awards to RP in securities Class Actions.[49]  In addition, US Congress’s Class Actions Fairness Act of 2005 (CAFA), characterizes more compensation for RPs in the area of Securities Fraud as one of the “abuses” of Class Actions practice the situation in which “unjustified awards are made to certain plaintiffs at the expense of other class members.”[50]   The 2006 study attacks the reforms claiming that outside the private securities litigation context, courts regulated the grants of incentive awards reasonably and a total ban of incentive awards in securities Class Actions was heavy-handed.[51]  The Congress had attempted to enact rules that would avoid the abusive litigation that took place there when “professional plaintiffs” raced to the courthouse to become lead plaintiffs in a suit.[52]  To address this, US Congress limited the role of the RP to the “most adequate plaintiff.”[53]  Thereafter, the PSLRA specified criteria for courts to determine the “most adequate plaintiff,”[54] including in the factor to determine the RP as “in the determination of the court, has the largest financial interest in the relief sought by the class.”[55] As a result, the PSLRA sought to eliminate the monetary motivations for “professional plaintiffs” to be the RP by compensating on a proportional share of the stock ownership.[56]  According to the empirical study in 2006, the institutional investors that Congress hoped to lure as class representatives likely incurred significant opportunity costs and may be discouraged from serving if they cannot receive adequate compensation.[57]  Hence, the question remains, what’s the incentive for an individual to volunteer for most likely burdensome task of representing the class?

In Ontario some plaintiff counsel report that despite indemnification guarantee in case of a failed lawsuit, many ideal RPs ultimately decide not to take on this role.[58]   It is important to consider whether individuals would burden themselves with the task of becoming an RP if they can just wait for someone else to complete the work especially where every class member would receive either no monetary benefit or an amount that is very small.  Where Cy-près distributions are handed out or in cases where the recovery is small, RPs may even experience a net loss because the small remedy is not enough to cover the increased costs of serving as the RP.[59]  In other cases, the class member’s expected compensation may surpass the costs of acting as RP, but “free-rider effects” make the individual unwilling to go forward.[60]  The “free-rider effects” can result in failure of litigation if for example no one risks volunteering as RP.[61]  Hence, the most important salutary effect for more compensation is providing the necessary amount of incentive for a great number of individuals in the class to become willing to work as an RP.

D. CONCLUSION

Courts in Ontario continue to rule on the topic of more compensation to the RP with reluctance and hesitation.  Most Judges seem to focus on the reduction of the conflict of interest between class members and the RP rather that aiming to provide any sort of monetary incentive to RPs even where there are hints of quantum meruit basis for such payment.[62]  Where these incentives seem most necessary – to provide the necessary incentive in Cy-près and small-return settlements, the concern for conflict of interest seems to become the central question.  This clearly is a dilemma that every court must consider in balancing the salutary and deleterious effects of providing compensation for the current RP and an incentive for potential future RPs.  The CPA was enacted so that the RP does not merely “put [his/her] name to proceedings.”[63]  Ideally the RP’s undertaking is to give instructions to counsel and make decisions that affect the rights and potential triumph for the whole of the class.[64]  The motivation that is necessary to take on this responsibility and the amount of energy and time that is spent in litigation are strong arguments in support of liberalizing the Windisman test through judicial discretion.  On the other hand, there are risks associated with a system that would constantly compensate RPs beyond the rest of the class.  This way of compensation may provoke an atmosphere ripe for conflict of interest in a relationship that ought to be close to a symbiotic interaction.  The CPA legislators did not want to turn Class Actions into a “playground for mere seeking of profits.”[65]  For example in Cy-près distributions where no other class member receives any compensation, sole monetary compensation for the RP may seem unfair but no compensation at all to the RP may mean a net loss to that individual.  Hence a balancing of the positive and negative effects of more compensation may be the difficult path that every Justice must endure.

The good news is that the experiences of some practitioners in the field suggests that the potential deleterious effects for RPs motivated solely by monetary gains is somewhat neutralized, it is reported that such individuals are more likely to stand back and let someone else do the hard work for them.[66]  Advocates for more compensation further suggest that most RPs tend to be firmly committed to the particular cause at hand.[67]   Despite the need for scepticism, it is without a doubt that an individual will think twice before agreeing to take on the role of the RP.[68]  A judicial balancing of such factors is helpful in deciding the format of compensation for an RP.

Taken together, I contend that these claims represent the present scope of arguments for and against more compensation for the RP under the CPA, and it is on these grounds that Canadian courts should continue assess the viability of such a request by the RP.  Admittedly, it is still possible that a trial court might find for the RP in a class proceeding requesting more compensation despite the difficult test set in Windisman. Yet for all the reasons above, I think that it is unlikely — and this is not necessarily a bad thing. If a Class Action ends with all sorts of conflicts of interest and individuals tempted to make a living from becoming a “professional plaintiff”, attention will likely be focused on the need for substantive Class Actions reform and lawyers may find themselves in great ethical dilemma.  The US experience of corrupt plaintiff counsel is certainly a concern must not be easily dismissed.  Courts should carefully assess how settlements balance access to justice; will liberalizing the Windisman test be fair to the whole class? What value do we ascribe to access to justice, judicial economy, and behaviour modification and a settlement process free of corruption and conflict of interest? These are the key questions. If we are willing to organize resources around the ideas that were promoted in the OLRC’s vision for class proceedings, we must be forthcoming with the way that we evaluate the role of the RP.

If we believe that the success of Class Actions very much depends on the existence of RPs willing to work for the success of the whole class, a decision must be taken either through legislation or judicial edict to allow for more ways to provide individuals with the necessary incentive to take this role or simply accept the risk that some RPs will be facing the very real danger of net loss. Spurred by a more liberal test for compensating RPs, settlements would provide an adequate deterrent to those who would otherwise rather sit on the sidelines when they may in fact be the best candidate for the role of RP.  Until such a deci­sion is implemented, it is difficult to see how we can increase the interest for taking on the role that most people may very well be tempted to pass onto another class member.