Bouchard (Phoenix pay system) class action: Amended judgment approving the settlement agreement
This is not an official translation and in case of discrepancy, the original French version will prevail
Superior Court
(Class Action)
Canada
Province of Quebec
District of Quebec
N° : 200-06-000214-174
Date: April 15, 2025
On the Bench: The Honourable Jean-François Émond, j.c.s.
Ezmie Bouchard
Plaintiff
v.
Attorney General of Canada
Defendant
Amended Judgment
(On an Application for Approval of a Settlement Agreement)
1. The Application
[1] The parties return to the Court six (6) years after the judgment authorizing the class actionFootnote 1. A settlement having been reached, they ask that it be approved.
[2] The plaintiff is also requesting that class counsel fees be approved.
2. The Settlement Agreement
[3] The background to the class action is well known. It stems from the failures of the Phoenix pay system, which caused problems for many federal government employees.
[4] The class action concerns only non-unionized employees, unionized employees having been excluded from the class action in the authorization judgment. The prejudice suffered by unionized employees was the subject of agreements between their union and the government.
[5] The Settlement Agreement covered by the approval request therefore only concerns non-unionized employees.
[6] According to the evidence, the method used to establish the compensation payable to the affected members is essentially the same as the one used to compensate unionized employees, with the exception of the particularities that had to be taken into account for the latterFootnote 2.
[7] The Settlement Agreement relates primarily to non-pecuniary damages awarded to members, with other terms and conditions having been put in place by the federal government to fully compensate employees who have suffered loss of income or incurred expensesFootnote 3.
[8] At the hearing, only one person objected to the request to approve the Settlement Agreement. This was Ms. Renée Delorme. She is the representative of a class action initiated in Alberta some time after this one. This action was suspended to avoid the risk of conflicting judgments with the present proceedings, which took precedence.
[9] In her written objection, Ms. Delorme argues that the settlement reached in this case is less advantageous than the one reached between the federal government and the unionized employees. However, it has been shown that the figures and data she put forward do not reflect reality. At the hearing, Ms. Delorme acknowledged this. However, she maintained that the members targeted by the Settlement Agreement, the non-unionized employees, i.e. the temporary and student employees, were treated less advantageously than the unionized employees. She argued with great conviction that the work performed by non-unionized employees and their contribution to the public administration was just as important as their unionized counterparts, and that nothing could justify treating them differently.
[10] No one doubts the contribution of non-unionized employees to the federal public administration.
[11] Non-unionized employees have the right to comparable treatment, without saying that it must be the same.
[12] Is this the case? Based on the evidence presented by the Attorney General of Canada, we must conclude that it is.
[13] The method used to establish compensation in both cases is essentially the same. It is based on average earnings for hours and days worked. Since non-unionized employees generally work fewer hours than unionized employees, the threshold for non-pecuniary damages is lower. This explains the existing discrepancies.
[14] In fact, the evidence shows that the Settlement Agreement meets the best interests of the members. Admittedly, it is not perfect and does not meet everyone's demands. But this is not the applicable threshold.
[15] Bearing in mind the fair and equitable nature of the settlement, as well as the inconvenience of pursuing the action, the risks inherent in it and the delays that would be added to those already incurred, the Court considers that the settlement should be approved.
3. Fees
[16] The fees claimed by class counsel amount to $1.4 million. If we take into account the fee agreement entered into between the plaintiff and class counsel prior to the institution of the action, which sets class counsel fees at 20% of each liquidated claim, this means that for the fees (1.4 million), to correspond to the fee agreement, this would require a minimum of individual claims of approximately $7M, i.e. plus or minus 25% to 28% of potential claims.
[17] Of course, no one knows for sure what the actual rate of claims will be.
[18] To ensure that the agreed fees are not disproportionate to the claim rate that will eventually be achieved, the Fonds d'aide aux actions collectives suggests that the payment of fees be modulated so that their final determination is made in six months, when there will be a clearer idea of the actual claim rate.
[19] The Court considers that such a modulation does not seem appropriate. On the one hand, the agreed fees appear reasonable in view of the scope of the case, which involves a considerable number of people. On the other hand, the fees payable will have no impact on the compensation.
[20] Moreover, given the measures taken by the Attorney General of Canada to publicize the Settlement Agreement and encourage members to submit claims, and the relatively straightforward claims procedure, it seems likely a claims rate in the order of 28% will be achieved.
For These Reasons, The Court:
[21] Grants this request for approval of a Settlement Agreement and approval of professional fees;
[22] Declares that the Settlement Agreement R-1 is reasonable, fair and in the best interests of the class members;
[23] Approves the Settlement Agreement R-1 between the plaintiff Ezmie Bouchard and the defendant the Attorney General of Canada;
[24] Orders the parties to comply with the terms and conditions of the Settlement Agreement R- 1;
[25] Declares that Settlement Agreement R-1 will be binding all Class Members who have not duly opted out of the Class Action within the prescribed time period;
[26] Declares, in accordance with paragraph 5.2 of the Settlement Agreement R-1, that:
"Class Members who did not opt out within the Opt-Out Period give a full and final release to the Defendant, its departments, entities, employees, agents, directors and other officers, past and present, successors and assigns, and its insurers, from all claims, demands, liabilities and causes of action, of whatever nature, under civil law, common law, public law, Charter or statutory law, for all damages, contributions, compensation, costs, disbursements or expenses, expenses and interest of every kind and nature - pecuniary or non-pecuniary, exemplary or punitive- including stress, distress and inconvenience, whether past, present or future, arising, directly or indirectly or in connection with the authorization judgment or the facts alleged in the statement of claim. Class Members who did not opt out within the Opt-out Period agree not to commence any proceedings against the Defendant or any other person who may have a claim against the Defendant, for warranty, compensation, contribution or damages."
[27] Approves the notice to members as proposed and the method of publication of this notice as described in the appendices to the Settlement Agreement R-1;
[28] Orders the publication of the Notice to members in accordance with the terms of the Settlement Agreement R-1;
[29] Confirms the designation of the Defendant as the Claims Administrator, within the limits set forth in the Settlement Agreement R-1;
[30] Approves in substance the form and content of the Claim Form;
[31] Declares that Class Members who wish to file a claim must do so in accordance with the terms of Settlement Agreement R-1 and by completing the Claim Form within the prescribed time limits;
[32] Acknowledges the plaintiff's withdrawal of its interlocutory application of December 13, 2019;
[33] Acknowledges the commitment of the class's counsel to reimburse the Fonds d'aide aux actions collectives in the amount of $37,845.98 within 90 days of the amended judgment, and Orders them to comply;
[34] Approves payment of the fees stipulated in the Settlement Agreement R-1;
[35] The Whole, with each party paying its own costs.
Jean-François Émond, j.c.s.
Me Christian Saraïlis
Me Julien Fortier
Me Maxime Guérin
Saraïlis Avocats inc.
For the plaintiff
Me Claude Joyal
Me Nadine Perron
Me Maude Lemay-Brisebois
Department of Justice Canada
For the defendant
Hearing : February 18, 2025
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