From time to time, the court, in a class proceeding, has appointed counsel as amicus curiae. Amicus curiae, is Latin for “friend of the court.” This is someone not already counsel for a party in the proceeding. In the class proceedings context, an amicus appointment may be particularly helpful at points in the proceeding where the reasonableness of a step has to be considered by the court in a non adversarial setting, including at the settlement approval stage of the litigation and on a motion to approve class counsel’s legal fees.
Recent recommendations made by the Law Commission of Ontario (LCO) in its Class Actions: Objectives, Experiences and Reforms: Final Report confirm and encourage the practice of appointing amicus, and in fact recommends the Class Proceedings Act be amended to specifically provide for the appointment of amicus in the proper circumstances. Accordingly, we may observe amicus being appointed in more cases.
While there has been no specific provision in the Class Proceeding Act authorizing the appointment of amicus curiae, the court in Smith Estate v. National Money Mart Co. 2011 ONCA 233, confirmed the court has the discretion and inherent jurisdiction to do so.
Specifically, the Court of Appeal in Money Mart noted that “… the motion judge should give serious consideration to the appointment of amicus curiae or a guardian of the settlement fund on the hearing of counsel’s application for approval of their fees.”
Further, the court observed that “nothing in the legislation, however, discourages the court from exercising its inherent jurisdiction to ensure proceedings before it are fair or resorting to its authority under rule 13.02 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] to appoint [page 45] an amicus.”
The court noted:
“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.”
Prior to Money Mart, as noted by the Court of Appeal in its decision, the only Canadian case that actually discussed the appointment of an amicus in the context of approving a class settlement or class counsel fee was the British Columbia Supreme Court’s decision in Killough v. Canadian Red Cross Society 2001 BCSC 198. In Killough, the court cautioned against the use of amicus curiae noting:
“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.”
Recently, in Bozsik v. Livingston 2019 ONSC 5340, the court granted a motion to approve the settlement of a class action, specifically approving the payment of the fees of counsel appointed as amicus curiae.
The court had appointed counsel as amicus to assist the court with respect to the reasonableness of the settlement and the reasonableness of the fees and disbursements of counsel for the plaintiff. The court found that class counsel fees were reasonable and approved them. With respect to the role amicus had in this proceeding, the court noted:
“… a judge entertaining a motion to approve a settlement, and the fees of class counsel, is at a distinct disadvantage. Both parties will urge that the settlement be approved. The defendant has no interest in challenging the reasonableness of the fees of class counsel. It is important, in my view, that some process be available to the court in order to assist in exercising due diligence. As discussed by the Court of Appeal in Smith Estate v. National Money Mart Co., 2011 ONCA 233, 106 O.R. (3d) 37, one method of doing so is through the appointment of amicus.”
The court observed that amicus thoroughly analyzed the material and were able to provide considerable assurance that the settlement and the fees of class counsel were reasonable. Ultimately, the court ordered that the fees and disbursements of amicus be defrayed, for the most part, out of the settlement funds and, to a lesser extent, by the defendant. The court’s view was that the defendant had an interest in the settlement being approved, and it was appropriate that it pay at least some portion of the fees and disbursements of the amicus. The defendant consented to paying 25 per cent, which the court accepted.
The court’s decision in Bozsik is consistent with the recent recommendations made in the LCO’s report. Particularly, 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.” While the appointment of amicus curiae is discretionary, it may not be appropriate in every case. The recommendations made by the LCO with respect to amicus appointments remain recommendations; the Class Proceedings Act has yet to be amended.
This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.