No indemnity for the representative in a class action in Quebec
In its recent decision in Attar v. Fonds d'aide aux actions collectives et al, 2020 QCCA 1121, the Quebec Court of Appeal upheld the Superior Court judge's refusal when approving settlement of the class proceeding to grant an indemnity of $5,000 to the representative plaintiff to compensate him for his participation in the class action .
In support of this claim, the representative alleged that he had invested time and effort in order to play his role as representative, and that in our digital age, his name would henceforth and forever be associated with the "Red Bull class action". He also alleged that the amount claimed was modest and had not been contested by any member of the group.
The trial judge had determined that Article 593 of the Code of Civil Procedure (C.C.P.) did not permit any remuneration of the representative, other than disbursements, legal fees and attorney's fees, in order to avoid any conflict of interest, and that this principle applied both when a judgment is rendered on the merits and when a settlement is approved by the Court.
The Court of Appeal upheld this decision, noting in passing that the Minister of Justice's comments on article 593 C.C.P. specifically mention that the article does not provide for compensation for the time and energy devoted to litigation, and rejecting the representative's contention that article 593 C.C.P. did not apply in the context of a class action settlement approval.
This decision closes the door to the inclusion in a settlement of any form of remuneration for the representative in a class action in Quebec, whereas such remuneration is permitted in other Canadian provinces and in the United States.