INTRODUCTION
In class action proceedings, the role of independent counsel appointed to assist the court, or retained to represent class counsel, has become an important consideration in addressing potential conflicts of interest and maintaining an objective perspective. Independent counsel can provide a neutral voice, where there may be a perception that the interests of class counsel may not align with the interests of class members they represent. In these situations, certain class members may view their own individual interests as conflicting with the interests of class counsel or other class members.
This article examines the role of independent counsel in class proceedings in carriage motions and class counsel fee approval motions following settlement. This article also explores the benefits and limitations of involving independent counsel at various stages of a class proceeding.
CARRIAGE MOTIONS
What happens when multiple plaintiffs file proposed class proceedings in relation to the same subject matter? When counsel for the different plaintiffs cannot resolve the carriage issues amongst themselves, the different groups of putative class counsel may find themselves embroiled in a carriage fight to determine which action will proceed.
In determining carriage of a class proceeding, the court’s objective is to make the selection that is in the best interests of the proposed class members. The court considers a non-exhaustive list of factors, some of which concern the qualifications and expertise of the proposed class counsel.[1]
The courts have cautioned counsel to avoid turning carriage motions into “law firm beauty contests” noting that “the focus on a carriage motion should not boil down to a ‘beauty pageant’ between competing or rival law firms.”[2]
To veer away from turning the courtroom into a catwalk and focus on the best interests of the proposed class members, Ontario courts have, on a number of occasions, suggested that retaining independent counsel to represent competing putative class counsel groups at the carriage motion may be beneficial. The courts have suggested that, for certain cases, it may be preferable if the “putative Class Counsel retained external genuinely independent counsel to both: (a) professionally prepare the material for the motion; and (b) professionally argue the motion.”[3] The intent is to “introduce an element or at least the appearance of some objectivity.”[4]
While this practice has been considered by the court,[5] it does not appear to be a determinative factor on carriage.[6] Moreover, retaining independent counsel can come with a steep price tag for proposed class counsel, particularly in the context of a carriage motion, where in Ontario, pursuant to the Class Proceeding Act, 1992, SO 1992, c 6 (the “CPA”), s. 13.1(7), class counsel retains independent counsel at their own expense, and cannot attempt to recoup any portion of the costs from the class or from the defendant(s). The cost burden imposed on proposed class counsel by retaining independent counsel may be one of the reasons counsel often opt to represent themselves at carriage.
FEE AND SETTLEMENT APPROVAL MOTIONS
Similarly, settlement and class counsel fee approval motions (and appeals related to same), are another context where we have seen the court consider the participation of independent counsel by appointing amicus curiae. An amicus is an independent party who does not represent either side in the case but is appointed by the court to offer an impartial perspective.
Unlike in carriage motions, settlement and fee approval motions are often not adversarial, i.e., both parties want the settlement to be approved and the defendant(s) often do not make any submissions. On a fee approval motion in particular, class counsel’s submissions are often uncontested as defence counsel has no interest or standing in challenging the reasonableness of fees of class counsel. While some class members may object, most class members are not actively involved in the settlement and class counsel fee approval process.
Recommendations made by the Law Commission of Ontario in its Class Actions: Objectives, Experiences and Reforms: Final Report encouraged the practice of appointing amicus, and recommended the CPA be amended to specifically provide for the appointment of amicus in the proper circumstances.[7]
There is no specific provision in the CPA authorizing the appointment of an amicus. However, the court in Smith Estate v. National Money Mart Co., confirmed the court has the discretion and the inherent jurisdiction to do so:
The court has jurisdiction to appoint an amicus to preserve the fairness of the proceedings before it. In Ontario, though, there is no judicial discussion of the appointment of amicus in the context of class action proceedings. Commentators, however, have pointed out the benefits of allowing amicus to assist the court in the approval of settlements and class counsel fees, which are often dealt with together.[8]
While in some cases the court may benefit from the appointment of an amicus, the courts have cautioned that not every case requires the assistance of amicus, in Killough v. Canadian Red Cross Society, the court noted:
In my opinion, there is merit in [the] submission that amicus curiae should not be appointed as a matter of course in these matters. It may be that, in a particular case, the class-action judge will consider that amicus would be helpful, but to make such an order in the absence of some special circumstances warranting it would be to add an unnecessary layer of complexity and expense to the fee-approval process.[9]
The appointment of amicus remains at the court’s discretion and may not be appropriate or necessary in every case. As observed by the Court of Appeal for Ontario in Fresco v. Canadian Imperial Bank of Commerce:
Consistent with this court’s statements in Smith Estate, in the absence of an adversary and an independent perspective, class counsel should consider seeking the appointment of amicus for the purposes of fee approval motions. Although as noted in Smith Estate, appointment of amicus is neither necessary nor desirable in every case, it would be of particular assistance when dealing with mega-fund settlements with large attendant proposed class counsel fees. To a degree, the appointment of amicus would serve to alleviate some of the current challenges associated with requests for approval of counsel fees and would serve to assist the court in its consideration of proportionality.[10]
In cases where an amicus has been appointed, the court may also be required to determine which party must pay the professional fees and disbursements, if any, of the amicus. This may be informed by the terms of the settlement agreement, which may limit whether the defendant can contribute to the payment of any amount other than the settlement fund, and therefore the amicus’ fees may ultimately be paid by the class members and deducted from the amount of the settlement fund. In A.B. v. Clercs de Saint-Viateur du Canada, 2023 QCCA 527, the court ordered that the amicus be paid by the class members out of the settlement fund, but cautioned against proposing any rigid rule that an amicus should always be paid out of the settlement fund, as there may be cases where it would be appropriate for these costs to be shared by all parties involved.[11]
Given the potential for additional costs, the court has cautioned that “not all cases are amenable to such a process of appointing an amicus or appointing a counsel to argue all or specific points. Economy and efficiency are factors in considering what tools the Court should use.”[12] Where the size of the class is small, and the amount of money at issue is not one of the “mega class actions” the assistance the court may need must be tailored to the realities of the case.[13]
CONCLUSION
While there may be value to appointing or retaining independent counsel, it is unlikely to be necessary in every case, particularly where it may add complexity and expense to the class proceeding, or where the additional cost may ultimately be borne by class members. In certain cases where class counsel are being asked to justify their own legal fees, particularly in a mega class action fees case, and emphasize their past experience and accomplishments, the involvement of independent counsel may assist the court in ensuring the integrity and fairness of class proceedings remains intact.
Given the potential for additional cost exposure, class counsel should make every effort to present comprehensive materials at its fee and settlement approval motions to provide the court with the tools it needs to render a decision which may avoid the additional expense that may arise from the appointment of amicus. In a complex settlement that may already provide for an independent assessor for fees, the parties may also wish to incorporate a provision in the settlement agreement that addresses the appointment of an amicus, and specifies who will be responsible for payment of any professional fees and disbursements.
[1] Rogers v Aphria Inc., 2019 ONSC 3698 at para 18.
[2] Machinelli v Barrick Gold, 2014 ONSC 6516 at para 13; Thomson et al v Minister of Justice Manitoba et al, 2016 MBQB 169 at para 54.
[3] Del Giudice v Thompson, 2020 ONSC 2676 at para 72, citing Quenneville v. Audi AG, 2018 ONSC 1530 at para 4.
[4] Quenneville v. Audi AG, 2018 ONSC 1530 at para 4.
[5] See, for example, Morel v Koninklijke Philips N.V., 2023 BCSC 625 at para 85; Moiseiwitsch v Canadian National Railway Company, 2022 BCSC 331 at para 104.
[6] Reid v Google LLC, 2022 BCSC 158 at paras 75-77; Wong v Marriott International Inc., 2020 BCSC 55 at para 35.
[7] Kalajdzic, Jasminka, Piché, Catherine, Thomas, Nye, Carnerie, Fran, Lindsay, Susan & Vulimiri, Amita, "Class Actions: Objectives, Experiences and Reforms (Final Report)", July 7, 2019, Law Commission of Ontario, available at https://www.lco-cdo.org/wp-content/uploads/2019/07/LCO-Class-Actions-Report-FINAL-July-17-2019.pdf.The report makes the following two recommendations with respect to amicus curiae appointments:
#22 “Amicus Curiae: The LCO recommends s. 29 of the Act be amended to give the court discretion to appoint an amicus curiae to assist the court in considering whether to approve a proposed settlement. The court should have the discretion to determine payment for the amicus as the court may deem just.”
#37 “Amicus Curiae: The LCO recommends the Act be amended to give the court the discretion to appoint an amicus curiae to assist the court in considering fee approvals. The court should have the discretion to determine payment for the amicus as the court may deem just.”
[8] Smith Estate v. National Money Mart Co., 2011 ONCA 233 at para 23.
[9] Killough v. Canadian Red Cross Society, 2001 BCSC 198 at para 14.
[10] Fresco v. Canadian Imperial Bank of Commerce, 2024 ONCA 628 at para 103.
[11] A.B. v. Clercs de Saint-Viateur du Canada, 2023 QCCA 527 at para 85.
[12] Wenham v. Canada (Attorney General), 2019 FC 1653 at para 27.
[13] Wenham v. Canada (Attorney General), 2019 FC 1653 at para 28.
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