“Above and Beyond the Call of Duty”: Honorarium Payments to Representative Plaintiffs in Class Proceedings

In Makris v. Endo International PLC, 2020 ONSC 5709, Justice Glustein of the Ontario Superior Court of Justice opined on a niche area of class actions law -- honorarium payments for representative plaintiffs. The claim in Makris arose after the corporate defendant’s alleged misrepresentations artificially inflated its stock price. The parties ultimately settled the matter, and Ms. Makris, the representative plaintiff, moved to have the Court approve the settlement. The resolution contemplated a roughly $400,000 cy-près payment to an Investor Protection Clinic and a $15,000 honorarium payment to Ms. Makris for the time and effort she had expended on the class’s behalf.

While Justice Glustein approved the cy-près distribution, he rejected the request for an honorarium payment to the representative plaintiff. He noted that honorarium payments were “exceptional” and “rarely done,” and available only when a representative plaintiff had “gone well above and beyond the call of duty." Justice Douglas of the Supreme Court of British Columbia recently offered a slightly different line of reasoning in Cardoso v Canada Dry Mott’s Inc, 2020 BCSC 1569 (which was released three weeks after Makris). In Cardoso, the two representative plaintiffs each sought $10,000 honorarium payments. Relying on authority from the British Columbia Court of Appeal, which provides that a “modest award” in recognizing a representative plaintiff’s efforts was “consistent with restitutionary principles and recognition of the principle of quantum meruit,” Justice Douglas approved reduced honoraria of $1,500 per representative plaintiff. Justice Douglas added that while she was satisfied that both plaintiffs “fulfilled their duties”, neither provided any “special expertise”, nor were they required to attend examinations for discovery or cross-examinations on their affidavits.

The decisions in Makris and Cardoso highlight somewhat divergent approaches to honorarium payments across Canada’s class actions regimes. While Makris seems to require a representative plaintiff go “above and beyond the call of duty," British Columbia’s courts may be more lenient -- entitlement to a small honorarium is not uncommon for mere fulfillment of duties.