Additional compensation to representative plaintiffs in Ontario: Conceptual, empirical and comparative perspectives

Class actions often require judges to address issues and requests that do not arise in traditional litigation. An increasingly important example is the honorarium payment: additional compensation made to the representative plaintiffs of a class action in the event of a successful outcome. The current Ontario class action regime does not expressly authorize honorarium payments despite the higher risks, and monetary and time commitments made by representative plaintiffs. As a result, the author argues that Ontario judges have dealt with these requests for honorarium payments in an inconsistent and overly restrictive manner. This article attempts to explain some of these judicial inconsistencies through conceptual, empirical and comparative lenses. The author first reviews the honoraria jurisprudence and investigates how honorarium payments interact with the interests of the class members and the need for representative plaintiffs to provide adequate representation for the class. The author then decodes cross-jurisdictional data gained through independent research in an attempt to reconcile the number of honorarium payments that are granted, the quantum of the payments, and the judicial reasons for doing so with the relevant jurisprudence. Ultimately, the data reveals that there is far too much discrepancy in the issuance of honorarium payments, resulting in an unsatisfactory class action landscape in Ontario.