Canada: Much Ado About Very Little? When A Court Questions The Adequacy Of Compensation On Settlement Approval

On January 28, 2019, the Ontario Superior Court of Justice released its decision in Micevic v. Johnson & Johnson. This decision addresses several issues relating to settlement approvals in the context of the Class Proceedings Act, including:

  • What makes a fair and reasonable settlement, and to what extent a court may adjust a proposed settlement;
  • Ordering a permanent stay of proceedings in the face of duplicative proceedings in two jurisdictions; and
  • How a non-settling defendant's procedural rights can be protected if settlement is approved.

Parallel actions were brought by Plaintiffs in Ontario and British Columbia. Both actions allege that a cosmetic injectable filler, Evolence, caused bumps or nodules when improperly injected into the lips of persons who used the product. Although this reaction may be permanent and severe, the adverse effects are believed to occur only in a limited number of people. This meant that the class size was small. Consequently, the proposed overall settlement was also small ($110,000 to be distributed to class members). The proposed settlement was agreed to by five of the six defendants, and class counsel. One class member objected to the proposal on the basis that it was not fair and reasonable given the injuries she had suffered, and the losses incurred by her and others in a similar position as her.

In considering settlement approval, the court must determine whether it is fair and reasonable, and in the best interests of the class. The Court in this case noted that while the settlement was negotiated by experienced counsel, there was concern that the small class size (i.e. 12 or 13 class members) meant that "the economies of scale that often provide a motivational factor for a large class action were missing (para. 15)." The Court went on to say that while a settlement is inevitably a compromise, "that does not mean that it should simply strike a median level of payment for every class member such that it seriously undercompensates those whose damages are greatest. Moreover, even if the representative plaintiffs have "learned to accept and live with" their losses and have lost their desire to pursue the case, the interests of all class members must be taken into account. Any settlement must be fair to the entire class, including those who suffered the most (par. 21)."

The settling parties had agreed to a "distribution protocol" which set out three levels of compensation based on three levels of physical injury. The protocol also called for income loss compensation, but only up to a maximum of $5,000 per claimant. The Court considered the case of the objecting class member, as an example of a sub-class of claimants, and found that given her level of loss, the "distribution protocol" would not sufficiently compensate her. She was a professional model and had suffered income loss due to her injuries. While recognizing that the court's role is to approve or refuse to approve a proposed settlement, and not to transform an agreed-upon settlement, the Court said it is possible for a court to "adjust some of the details of a proposed settlement in a way that does not undermine the settlement overall (para. 25)." All counsel agreed that "that the Distribution Protocol [was] open to the court's readjustment so long as the settlement amount and the general structure of the proposed settlement remain[ed] intact" (para. 25). The parties also agreed that there was flexibility in the cap set on income loss compensation.

The Court ultimately found that to make the proposed settlement fair and reasonable, while also preserving the overall settlement distribution for the rest of the class, the maximum amount for income loss that could be awarded per claimant should be raised to $20,000.

Further, given that the class action was to continue against the non-settling defendant, and there were identical proceedings in British Columbia and Ontario, the Court ordered a permanent stay of proceedings with respect to the Ontario action. The Court found that there was no injustice to the plaintiff in ordering a stay of the Ontario action given that the identical claim would proceed in British Columbia. The Court also noted that a permanent stay of proceedings was warranted in the circumstances because it puts the onus on the plaintiff to restart the Ontario action if the circumstances necessitate it. In the ordinary course, a stay of proceedings would mean that the non-settling defendant would have to bring a motion to dismiss the Ontario claim, once the British Columbia claim had been finally resolved. The Court stated that since "the settlement has left open the B.C. proceedings against Canderm [the non-settling defendant], it is appropriate for the Plaintiff to bear the onus of re-starting any future proceedings in Ontario and not for Canderm to bear the onus of finally ending them (para. 40)."

Finally, the non-settling defendant sought a "bar order" which would preserve its procedural rights that might otherwise be lost once the settling defendants were out of the action. Specifically, the non-settling defendant and the plaintiff would not be entitled to full documentary and oral discovery as they would be if the settling defendants remained in the action. While the plaintiff was a party to the settlement and chose to forgo these rights as a feature of the settlement, the non-settling defendant was not a party to the settlement and would suffer an injustice as a result of it. The court applied the test articulated by the Ontario Superior Court of Justice in Ontario New Home Warranty Program v Chevron, and made a bar order which carved out the non-settling defendant's procedural rights in the remaining action.

Overall, this decision is helpful in understanding the court's role in approving settlements under the Class Proceedings Act and its limited ability to adjust settlement proposals. It further highlights the commitment to achieving judicial efficiency and procedural fairness vis à vis non-settling defendants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions