A former student at the Royal Winnipeg Ballet has been awarded $7,500 as an honorarium for being the representative plaintiff in a sexual abuse class-action lawsuit that was settled for $10 million.
The plaintiffs in that case alleged that BM, an instructor/teacher and photographer with the ballet, photographed students at the school in private settings between 1984 and 2015.
The class-action alleged three wrongdoings:
- by taking intimate photos in private settings, he sexually assaulted the students he photographed
- the taking of the intimate images was a breach of fiduciary duty by abusing his position of power and trust
- his disseminating and selling the photographs without the students’ consent was a breach of a variety of statutory and common law and privacy confidentiality torts.
Vicariously liable
The plaintiffs asserted that the Royal Winnipeg Ballet was vicariously liable for BM’s misdeeds, that it was negligent in failing to supervise him and that it failed to take action when it knew about his misconduct.
Under the settlement, each eligible claimant would received about $80,000. Additional payments — known as honorariums — were sought for SD for $30,000; plus $10,000 for her common-law spouse and $10,000 to three other class witnesses.
The judge in the original case said the claim for $70,000 in honorariums caused him to reconsider the practice of paying them in class proceedings. He noted that they should be awarded “rarely” and only if “he or she has made an exceptional contribution that has resulted in success for the class.”
He railed against the practice of making them routine, and denied the honorarium payments. That decision was appealed to the Ontario Superior Court of Justice Divisional Court.
The appeal court’s ruling
The appeal court granted a payment of $7,500 to SD, but rejected the honorarium claim for her common-law spouse and the other three class witnesses.
Her spouse fulfilled their responses “admirably” but that “participation did not extend well beyond the steps that needed to be taken,” it said. As for the other three witnesses, the court commended their commitment to right a wrong and assist the representative plaintiff (SD), but declined to award an honorarium.
It said the subject of this case, sexual abuse, was a factor that favoured a payment to SD.
“(SD) has had to relive her trauma for the benefit of the class and has protected the rest of the class from being re-traumatized the same way,” it said. It also added that being subjected to aggressive, albeit not improper, cross-examination was part of the “reliving of the trauma that favours a finding that his case is rare, especially for (SD).”
‘Modest’ payment
It called the $7,500 amount a “modest” payment and called the $30,000 she sought “not modest.” While there is no approved range for these types of payments, most are less than $5,000, it said, noting that there was “no doubt” that larger amounts are becoming more frequent.
“Of the 115 cases where these payments were approved in Ontario as of the time of this appeal, there are almost 50 that have approved an amount between $5,000 and $15,000,” it said. It also juxtaposed the amount of the average payment to class members ($80,000) to the requested payment of $30,000, something it said did not “compare well.”
It awarded $7,500 and noted that no costs were requested or ordered.
For more information see Doucet v The Royal Winnipeg Ballet, 2023 ONSC 2323 (CanLII)
