The Quebec Superior Court in Montreal on March 27, 2019.Ryan Remiorz/The Canadian Press
A Montreal law firm representing at least 375 sexual-abuse victims in a class-action lawsuit against the Clerics of Saint-Viateur, a Catholic religious order, is appealing a judge’s decision that rejected a $28-million settlement because he deemed the firm’s legal fees too high.
In July, Justice Thomas M. Davis of the Quebec Superior Court ruled that the fees in the case, set at 25 per cent – with taxes and expenses, more than $8-million – were “excessive” and “not in the interest of the members” of the class. In his decision, written in French, he concluded by suggesting that “good faith is presumed and one can believe that the parties will meet in order to agree on reasonable fees … thus allowing the members to receive the amounts due to them.”
The law firm, Arsenault, Dufresne and Wee, chose to challenge Justice Davis’ decision in the Quebec Court of Appeal rather than rework their fees. It did so prior to notifying all the class members, leaving at least one victim frustrated and in shock.
The 48-year-old man, who said he was sexually assaulted between 1986 and 1988 while attending Collège Bourget in Rigaud, Que., told The Globe and Mail that he was under the impression his lawyers would expeditiously lower their fees and submit a new agreement, putting an end to the years-long case. But that’s not what happened.
“They went silent, and next thing we knew they had already presented their appeal,” he said. “It’s outrageous that they would take most of the money for themselves when it is supposed to go to those of us who have been through a terrible situation.”
“In the end, we could lose this agreement.”
The class member is not named in the lawsuit and is not being identified here because it is Globe policy to protect the privacy of sexual-assault victims.
The office of Arsenault, Dufresne and Wee declined to comment on the appeal, citing the pending litigation. However, an e-mail it sent to the class members on Aug. 31, a week after filing its appeal, provides some insight on its decision to proceed in this manner.
“We took the time to analyze the different options, and after reflection, it was decided with your [class] representative … to appeal the decision of Judge Davis,” the firm wrote in French. “This way of doing things is the only way to save the $28 million agreement … and to have an accelerated process.” The e-mail also noted that the firm has offered to reduce its rate to 20 per cent from 25 per cent of the total settlement should the appeal be successful.
In his Aug. 25 decision granting permission to appeal, Justice Robert M. Mainville of the Quebec Court of Appeal wrote that if the appeal were denied, then legally one of the parties could waive it and walk away, despite Justice Davis’s hope that the parties would exercise a good-faith effort to renegotiate the fees. “On the other hand, if leave to appeal is granted, the process of judicial approval of the agreement follows its course and the parties cannot therefore waive it without legal consequences,” Justice Mainville wrote.
The initial lawsuit, filed in 2017, now represents at least 375 members, all of whom were allegedly sexually assaulted in Quebec while studying or living at institutions and schools run by the Clerics of Saint-Viateur. According to its website, the religious order oversaw orphanages, boarding schools and institutions for the deaf and blind.
The Clerics of Saint-Viateur did not return a request for comment prior to publication.
This isn’t the first sex-abuse class-action launched against the order. In 2016 it was ordered to pay a portion of a $30-million settlement to 190 men who had been abused between 1940 and 1982 while living at the Institut Raymond-Dewar, now known as the Montreal Institute for the Deaf.
Class-action legal fees have recently been the subject of contentious debate and scrutiny. The Quebec Ministry of Justice is examining potential reforms to class-action proceedings, including the assessment and approval of legal fees.
In 2018, Ontario Superior Court Justice Edward Belobaba rejected a settlement agreement for the Sixties Scoop class-action lawsuit, citing excessive legal fees. In response to Justice Belobaba’s rejection, lawyers agreed to “de-link” their fees from the settlement as a whole, enabling the agreement to move forward.
Andrew Eckart, a staff lawyer at the Class Action Clinic at Windsor Law, told The Globe that class counsel in the Clerics of Saint-Viateur case could have similarly opted to “de-link” their own fees from the settlement or lower their fees and resubmit the settlement agreement.
As for why the firm moved to appeal, “maybe class counsel want a ruling from an appeal-level court of what the proper analysis is to be done on” class-action fee agreements, he said.
While the class member agreed to the initial 25-per-cent fee, the outcome of that arrangement was simply not clear from the outset, he said.
“Of course I agreed to the initial fees,” he said, as it was that or nothing at all. “You just don’t realize how much that represents in a collective process until you see the numbers.”
Despite the law firm’s proposal within the appeal to reduce its rate to 20 per cent, he thinks that number is still too high. At least one other victim referred to in the court documents, whose name is protected under a publication ban, is also opposed to the legal fees.
Had the settlement and legal fees been approved, the remaining $20-million would have been subject to an adjudication process and distributed among the victims, with amounts determined on a case-by-case basis.
“I’m struggling in my life right now, so I would need this to come to an end … before I’m too old to actually do anything,” the 48-year-old class member said. “It’s very discouraging. I feel like there’s [no safety net] in place for us. … This is a terrible situation that I am anxious to see closed and put behind me.”