Ten years after September 11, 2001, the term “Islamophobia,” once largely obscure, has become all but inevitable when discussing contemporary politics. As Al-Qaeda and Osama bin Laden became household names, Western fear of the world’s 1.5 billion Muslims has also grown. Canada has been no stranger to this phenomenon. Despite its reputation as a haven of multicultural tolerance, one 2011 poll showed that 56% of Canadians believe Western societies are in “irreconcilable conflict” with Muslim societies. 40% of the 1500 respondents approved the profiling of airplane passengers who appear Muslim.  As Canada enters its seventh year of Conservative rule, how are progressives to understand and respond to this trend?

Islamophobia relies on characterizations of Islam and its adherents as uniquely prone to certain things, such as violence and sexism, and uniquely hostile to others, such as democracy and secular government. It includes discrimination based on perceived religious identity, such that non-Muslims, including Sikhs and Arab Christians, have also been targets of anti-Muslim violence in cases of “mistaken identity.” Meanwhile, Muslims in North America who do not appear to come from the Middle East or South Asia, such as Muslims of European or East Asian descent, have been less centrally targeted in this blurry overlap of religious and racial discrimination.

In this primer, we do not attempt to cover every instance of Islamophobia in Canada in the past decade. Rather, we provide an overview of its broad assumptions, particularly focusing on two themes that have proven central to discussions about Muslims: sexism and violence.

In offering this analysis, we stress that responses to Islamophobia must be placed within the context of Canada’s ongoing conservative political shift — from its increased military engagements around the world to its anti-immigrant policies at home, and from its vast cuts in social service funding to its ever-increasing levels of state surveillance. While numerous civil liberties and human rights organizations have reported on the rise of anti-Muslim hate crimes in Canada, we emphasize that Islamophobia is not just interpersonal: it is systemic. In fighting it, therefore, we must engage with the many other forms of oppression that also organize Canadian society.

Sexism 

Mainstream Canadian discussions about Muslim women generally exhibit an indefatigable insistence on “liberation.” This often-militaristic saviour complex, best demonstrated by the invasion of Afghanistan, requires a willful denial of the intelligence and resilience of Muslim women.

Yet Muslim women, in surviving and resisting the intersecting forces of oppression in their lives, suffer not from a lack of leadership, but of mainstream recognition. Thus, in opposing Islamophobia, we must engage with Muslim feminist leadership. These are women who challenge both mainstream stereotypes of Muslim women and comfortable liberal conceptions of free will. Recent controversies around the niqab (face veil) and Toronto’s Valley Park Middle School offer two instructive examples of leadership by Muslim women.

Niqab: From Quebec to the Queen 

In 2010, Quebec proposed Bill 94, which would deny essential government services, public employment, education, and health care to Muslim women who wear niqab. Proponents relied on the misconception that no woman would freely choose to wear a niqab. Moreover, they insisted that women who do choose to wear the niqab must be civilized into disrobing. They argued that by forbidding women from wearing certain clothes, they were in fact protecting a woman’s right to sartorial choice.

In response, Muslim women and their allies pointed out that the Bill would legislate a culture of paranoia around the small number of women who wear the niqab by forcing them to choose between their clothes and essential government services. Further, while many Muslim women do freely choose to don various forms of veiling, legislating shame around those who veil under external pressure only reinforces their marginalization, because Bill 94 would exclude those very women from public spaces.

For instance, the Right 2 Wear group, formed in 2011, stated that “We are tired of everyone — governments, our families, religious scholars, the justice system, our peers — being obsessed with what we wear. Muslim women and girls have the right to choose how we outwardly express our faith and religion.”

On the other hand, Bill 94′s supporters include Tarek Fatah, founder of the regressive Muslim Canadian Congress (MCC). In one moment of staggering cliche, he proclaimed, “I welcome the rescue of all Muslim-Canadian women.”  Fatah has also declared that the Ontario Court of Appeal “made a fool of the Canadian judicial system and values of gender equality” for allowing a  rape victim to testify against her alleged attackers in court in the clothes in which she felt most comfortable, namely her niqab.  For all his concern for “gender equality,” Fatah refuses to acknowledge that he infantilizes Muslim women by constantly policing how they dress.

Yet however trite Fatah’s language may be, it is effective. By using liberal rhetoric as a vehicle for conservative ends, Fatah appeals to people from across the political spectrum. Thus, he has become a media darling, the go-to Muslim mascot for sexist and racist policies.

2011 was also the year that Minister of Citizenship and Immigration, Jason Kenney, famed homophobe and anti-abortion activist,  banned the niqab from citizenship ceremonies. Kenney, whose contempt for the rule of law in immigration tribunals has already invited the condemnation of Chief Justice Beverley McLachlin,  harrumphed ”I’m sure they’ll trump up some stupid Charter of Rights challenge.”

In January 2012, the MCC officially applauded Kenney for the ban. At that event, Raheel Raza, another MCC spokesperson, posed in a niqab only long enough to tear it off for Kenney’s benefit.  Kenney promptly used the photo-op as proof of “widespread” support. This disingenuousness is unsurprising, coming from a man who describes renowned environmental and First Nations groups who oppose tar sands development as “radical” foreign-funded saboteurs. Indeed, Kenney has managed to connect faux-feminism even with his rampant anti-environmentalism: he actively supports the Conservative-backed Ethical Oil project, on the basis that local tar sands are the only ethical alternative to importing oil from Saudi Arabia, because of its record on women’s rights.

Valley Park Middle School: A Guide on How to Liberate Young Muslim Women 

In July 2011, the Christian Heritage Party (CHP), the Jewish Defence League (JDL), and Canadian Hindu Advocacy (CHA) picketed the Toronto District School Board (TDSB), because it had allowed Muslim students to pray at Valley Park Middle School. The news went from a fringe story about extremist racists “fighting the Islamization” of the TDSB to front-page headlines when the media reported that the prayers were gender-segregated.

Public debate promptly shifted from Muslim lust for world domination to Muslim hatred for women. The liberal Toronto Star ran a column by Heather Mallick entitled, “Time for someone to speak up for shy young girls.”  Change.org’s Women’s Rights administrators, Shelby Knox and Alex DiBranco, disseminated a petition opposing the prayer arrangement created by a fan of far-right Dutch politician Geert Wilders (whose fan-base also includes Anders Breivik, the white supremacist Oslo terrorist). That petition has yet to have secured the support of a single Muslim women’s organization, least of all the Canadian Council of Muslim Women, whose name the Change.org website touts. In an email, DiBranco stated that “the petition itself has done better than many other actions we’ve emailed on,” missing the fact that prevalence of Islamophobia in North America is precisely what makes their petition possible and so popular.

Shortly thereafter, the CHA crowed on Twitter, “Thx to CHA, Islamist mysogyny [sic] in TDSB schools exposed. We hope once we liberate Muslim women from oppression, they’ll thank us.”  (The JDL, CHP, and CHA commemorated the tenth anniversary of 9/11 with a gathering at TDSB headquarters.)

Liberal or conservative, these positions are sexist. They assume that not only do Muslim women have no voices, their voices must — for their own good — be supplanted by those of their would-be saviours. In other words, these self-appointed saviours would rescue Muslim women not only from the male Muslim oppressors ever implicit in their lives, but even from themselves.

Accordingly, despite all the hand-wringing over the fate of poor Muslim women, public discourse failed to feature the perspectives or actions of the Muslim students at Valley Park. It is especially insulting to the young Muslim women — the so-called “shy young girls of tender age” — who bore the task of confronting the racist protestors’ hate, such as the anonymous Muslim middle-school students captured onYouTube footage  and on CityTV.

Yet female Muslim community organizers rallied together around Valley Park, as they do every day on the myriad of issues that impinge on the ability of all women in Canada to access substantive equality. From deputations at Toronto City Hall against proposed cuts to social service funding to community mobilizations to ensure shelters and schools are sanctuaries safe from the deportation-crazed Canadian Border Services Agency to classrooms across this country, from their homes and from their workplaces, these women are activists and community leaders who have amassed an awe-inspiring collection of histories and strategies.

Discussions about what gender-equitable prayer spaces would look like are ongoing within diverse Muslim communities. After all, it is Muslim women who have direct experience grappling with sexism in their prayer spaces and in organizing those spaces into arrangements that meet their needs. This work is deeply inspiring for the examples it provides of principled feminist solidarity. The courage and creativity of that work is entirely lost in a mainstream framing that persists in depicting Muslim women as devoid of strength or intelligence.

It is vital that leftists, when feeling flames of righteous rage on behalf of Muslim women (or other marginalized groups), do their research. For one thing, it is not enough to have allies, if our allies have proven themselves racist and sexist. For another, we need to acknowledge that the Muslim women most affected by the issue of the month were dealing with it long before the media ever picked it up, and that they will have already developed a diversity of perspectives and strategies.

Above all, if “solidarity” is to mean anything, we must remember to take leadership from marginalized voices, not space: feminism’s role is to facilitate, not liberate.

Violence 

In a nationally-broadcast interview with Stephen Harper that marked the 10th anniversary of 9/11, the Prime Minister warned that “Islamicism” — a word he appears to have personally coined — offers the greatest current threat to Canadian security.  (His office later clarified he was referring to the threat of Islamic militants.) Harper attempted to qualify his statement by saying his comments were not applicable to all Muslims; however, a decade into the seemingly unending “War on Terror,” his words come as no surprise to an audience accustomed to constant warnings about the impending Muslim threat.

Indeed the most instinctual aspect of Islamophobia is to associate Islam with violence. Accordingly, an awe-inspiring amount of popular and academic attention has been devoted to proving Islam’s supposedly unique propensity for violence, whether by pointing to Qur’anic edicts that preach jihad or to cultural proclivities towards irrational destruction. The global rise of geopolitical actors espousing ideologies of power that use the language of Islam has made these assumptions hard to shake off. From Iran to Iraq, Palestine to Kashmir, New York to London: what is it with these Muslims? Why do they always seem to be killing? Must we not defend ourselves in response?

It is worth noting that these claims are not limited to celebrated racists like Canadian writer Mark Steyn or US political commentator Daniel Pipes. The more palatable liberal version of this claim simply differentiates between the good Muslims and the bad. The vast majority of Muslims are peaceful — it is simply a rotten minority that threaten our freedoms.

Hence many Muslim figureheads (including mainstream leaders, not simply fringe groups like the Muslim Canadian Congress) regularly rush to condemn any global act of violence committed by Muslims, often explicitly dismissing the very Muslimness of the perpetrators. The Islamic Supreme Council of Canada responded to Harper’s remarks about “Islamicism” by demanding he apologize because “the actions of fanatics do not represent Islamic beliefs.” Muslim community leaders repeatedly reassure us that anyone who perpetrates “terrorism” simply cannot be Muslim, because Islam is a religion that preaches peace, compassion and respect for the sanctity of human life.

While this reading of Islamic edicts may have its own merit, it simplistically assumes that events in the world can be read at face value and are not the product of complex social and political factors. Acts of war declared by liberal capitalist states are rarely interpreted as the result of liberal ideology, but violence framed in Islamic language is regularly taken at face value as if it were exclusively motivated by religion — at best a tragically incorrect religious interpretation.

The only room for response left by such an approach is the promotion of “correct” religious interpretations (those that look comfortably peaceful and patriotic), and the acceptance of state involvement in policing the internal affairs of Muslim communities. The call for precisely such interventions can be found in reports by Canada’s Integrated Threat Assessment Centre (ITAC), a body created in 2004 to monitor a range of foreign and domestic threats to Canadian security.

In 2010, a declassified ITAC report argued that Canadian Islamists are building “parallel societies,” in which Muslim organizations “do not advocate terrorist violence but promote an ideology at odds with core Western values.” The report stated, “The creation of [these] isolated communities can spawn groups that are exclusivist and potentially open to messages in which violence is advocated… At a minimum, the existence of such mini-societies undermines resilience and the fostering of a cohesive Canadian nation.” Thus the key concern of this report is not Islamists plotting imminent attacks. Rather, we are warned that these domestic Muslims, although not (yet) violent, threaten the nation-building project of Canada itself. Hence the report argues, “Islamist social ideology appears to have gone unstudied”, and calls for greater government attention to be directed at how Muslims think, communicate, and organize their day-to-day lives.

It is important that we question what the accusation of isolation refers to here. Surely it does not mean the withdrawal of Muslims from all social life, since it is near impossible to live in Canada without some connection to a range of public and private institutions, participation in the economy, and interaction with members of an impressively diverse population. Indeed none of the groups described in the report advocate the building of self-sustainable, Muslim-only communes.

On the contrary, many directly invoke laws and regulations of the Canadian state in an attempt to participate more fully within it. This is evident in requests for Muslim legal codes to be permitted for consideration within family courts, and for private Muslim schools to receive government funding comparable to schools of other religious denominations. The perceived threat to the nation is therefore not that Muslims are outside the reach of state power. Rather, it is about ideas that are allegedly incompatible with the dominant ideology of Canada. The threat is the possibility of thinking a certain way, one seen as resulting from particular Islamic teachings.

Left Response 

Yet the critical question for leftists is not whether or not the Qur’an in fact advocates violence, or what particular forms of religious practice (for example, arranged marriages or sanctifying martyrdom) will result in threats to Canadian security. Such questions should be entirely irrelevant to our response to Islamophobia. Instead, a critical left should make a two-fold response.

First, we must refuse to allow the dominant powers in society to define violence. Violence is not and will never be the sole prerogative of Islamist groups, whether theocratic states like Iran, political parties like Hamas or loose international networks like Al-Qaeda (each of which, it must be pointed out, have different relationships to violence themselves).

In turn, we must constantly draw attention to the forms of structural violence that give rise to the many conflicts that now fill our world. What historical injustices have led to our current political moment? What is it that allows outrage at the Taliban exploding roadside bombs in Afghanistan but celebrates Canada’s role in the NATO bombardment of Libya as laudatory humanitarianism? How can the prolonged refusal by the Canadian government to bring Omar Khadr, captured at the age of fifteen, home from Guantánamo Bay be considered anything other than an egregious violation of human rights, comparable to actions so often used to stigmatize repressive states of the Muslim world?

This response often meets accusations of simplification: all violence is surely not the same. Certainly it is not enough to respond to the claim, “(Some) Muslims are violent” by arguing, “Others are violent too!” What is important here is not to simplistically equate all forms of violence, but to reject the assumption that “Islamic fundamentalism” is a uniquely violent threat that characterizes our contemporary world.

Although many progressives readily acknowledge other forms of religious fundamentalism to compare alongside Islam, we must also insist on naming the violences committed by those who claim secularism, liberalism, and democracy as their ideologies. And as a settler-colonial state born out of the genocide and land-theft of its indigenous population, a process that continues to this day, it is precisely this foundational violence that makes the Canadian state itself possible.

At the same time, we must pay attention to the specificities of groups broadly characterized as violent. It is because Hamas is not Iran and Al-Qaeda is not the Toronto 18 that categories such as “Islamic fundamentalism” or “Islamist violence” are meaningless explanatory frameworks.

The second part of a critical left response to statements like Harper’s must be a constant awareness of what the state implements in the name of our protection. Inciting popular fear about the threat of radical Islam does more than simply portray Muslims in a certain way, or blur distinctions between diverse movements framed as Islamist. It also elicits a specific response.

As we have seen, the state’s response has meant a dramatic increase in the surveillance and policing of Muslim communities across the US and Canada. A recent Mother Jones report found that since 9/11 the FBI has spent billions of dollars creating a vast network of paid informants tasked with infiltrating the Muslim community in the US. Similarly, in Canada local mosques have for years been recordingincreased attempts at CSIS recruitment, with undercover informants sent to record sermons or tempt mosque-goers with cash in exchange for insider information.

Harper’s declaration that he intends to bring back parliamentary measures that give police greater powers to arrest and detain in cases of alleged terrorist threats should cause us all great concern. Above all, we must build alliances in ways that reflect a principled opposition to the discriminatory treatment of a few in the name of our collective security.

Conclusion 

In many ways, the examination of Islamophobia is a study in contradictions: Muslims are at once subject to acute scrutiny and to willful erasure from public discourse. Perceived as inherently dangerous to a rigidly static conception of “Canadian values,” the Canadian government uses the active presence of Muslims (alongside other stigmatized communities) in the public sphere to justify ever-increasing state intrusion into the private recesses of all our lives.

Simultaneously, state and pop culture obsessions with “unveiling” Muslims for the barbarians that they supposedly are remain grounded in deeply gendered biases. The foil to the frightful Muslim male is the silent Muslim woman, she who awaits liberation at the hands of Canadian armies and legislation. In its very racism, the effect is anti-feminist, because it relentlessly disregards the work Muslim women undertake everyday to defy sexism.

Of course, as with all forms of systemic discrimination, Islamophobia operates to reinforce other forms of oppression. It is worth keeping in mind what the Congress of Progressive Filipino Canadians has recently argued: “Amidst heavy-handed and punitive actions such as the burqa ban, we must seriously begin to scrutinize a state multiculturalism that, on the one hand, acknowledges diversity on paper, yet on the other, is used to justify racist and anti-immigrant practices as perpetuated by government policy. In light of recent developments, we must understand the actions taken by the Conservative government as part of a tactic to divide the Canadian working class, deny citizenship, maintain temporariness and to spark anti-immigrant sentiments while pushing forward austerity measures as part of the neoliberal agenda.”

Thus, we should be committed to principled solidarities, where we work in conjunction with marginalized communities – even in the face of differences that may invite uncertainty. In the end, it is only through collective struggle that we can envision the possibility of a radically new tomorrow.

—
This article original appeared in the New Socialist Webzine.

He chose the pseudonym “Smith,” the most common of English monikers. It is a name for regular folk and the plebian masses; it is a name for the 99 per cent.

In October, a burly, curly-haired activist calling himself Antonin Smith moved into St. James Park, the nexus of the Occupy Toronto movement.

Over the next two months, Smith – or “Agent Smith,” as he sometimes referred to himself – became one of the most controversial and outspoken citizens of Occupy Toronto, making himself a de facto spokesperson for a movement that did not want one.

Like many occupiers, he used a pseudonym. But to change one’s name is to obscure the past.

One of the more interesting parts of Mongeau’s past is that he is the adopted son of David Charles Mongeau, a University of Western Ontario law graduate who worked at Goodman’s until joining Four Seasons Hotels as an executive, and then vice chairman of CIBC World Markets.  David Mongeau eventually moved to London, England and created an investment bank called Avington Financial, focusing on hospitality deals and luxury hotels.

There’s not much luxury in the parks and camps of Occupy Toronto. Antonin Mongeau was kicked out of his parent’s Richmond Hill house at the age of 17 and experienced homelessness, which helped foster his support for the Occupy movement,

Mongeau says his experience as a homeless youth “changed my whole world view.” Several years later at St. James Park, some occupiers would notice Mongeau’s particular affinity for the homeless.

“When you’ve seen both sides of the coin you realize two things: we can’t keep going like this and it’s going to be hard,” Mongeau says. “Those with power and money will not relinquish it kindly.”

The full interview, which was conducted exclusively by email, follows below:

Tell me about your parents. Where are they from, what are their backgrounds?

David is industrious and intelligent, all of his successes are his own. Rose I would characterize as a poet more than anything.

What kind of parents are David and Rose?

Parents are like electrons, they want the path of least resistance for their children. I’m sorry if I’ve disappointed them.

Did you have a privileged upbringing?

I have experienced radical swings in class, but I’ve never wanted for much. When I was 17 I lived on welfare, by the time I was 22 the Internet had made me a millionaire. Education will be a right, but it’s a privilege for now and I’m grateful. My father didn’t join 1%-world until after I left home. It’s a nice place to visit but i wouldn’t want to live there. I’m back to being poor now, but I’m not worried.

How would you describe your performance and engagement as a student?

When I was in grade 4 they wouldn’t let me into gifted because I disrupted class too much. That pretty much sums up my experience with institutionalized schooling.

What did you do in the years between graduating high school and attending university?

While on summer break from our first year at U of T a friend and I started an internet company. It was 1999 so our company got bought by a larger company and we operated as a subsidiary selling CMS to small and medium sized business in the US. We had 100,000 paying customers and I did that for about 4 years. These internet successes made me a 1% for a brief period in 2002, but I managed to escape with a condo in hand.

When did you enroll at U of T? What did you study?

I studied Semiotics, Anthro, and Womens Studies.

How did you get involved with the French Club?

One day in Intro to Equity Studies a girl got up and introduced herself as president of Les Étudiants Francophones de l’Université de Toronto (EFUT – French Club). I was losing my mother-tongue due to lack of practice so I joined up.

What did you do with the French Club?

I’ve been a member, executive, 4-term president, and Alumni Chair. During my terms we’ve grown EFUT into the largest and most active student association at U of T, largely on the strength of our marketing. With 3100 members we’re one of the largest francophone groups in Ontario. We also have sister clubs at York and Ryerson. I’m very proud of my work promoting francophone language and culture in and around the University of Toronto, but I didn’t do it alone.

Some students I‘ve spoken to at U of T tell me you were a difficult person to work with. Do you agree?  How would you describe your leadership style?

I try to lead by example and with a simple credo: those who work the hardest make the rules. If you don’t work hard, you won’t like my style.

Some students say you were harassing to them. Do you agree with this statement?

I have never harassed anyone. In most incidences I called police to investigate and they found nothing.  I book space at U of T weekly, and I interact with the provost and others with regularity. The persons you spoke to were not “students” but paid employees of the Canadian Federation of Students, a notoriously corrupt corporation which controls 95% of student “unions” in Canada. Campus publications have a tendency to reprint their hearsay, and all accusations against me are false and libellous.

How did you first hear about the Occupy movement?

Occupy Toronto didn’t galvanize people to a cause, we’d just been waiting for it a long time. Personally, I draw much more inspiration from the peoples struggle in Iran or Wukan than I do anything in America, but obviously Wall Street was a significant advert. “Occupy” for me exists more in those middle east revolutions and the work of Anonymous or Wikileaks than anything Adbusters has done. Half the reason I went to Occupy was just to camp. I love camping.

In October, you suspended your duties as president of the French Club to devote yourself fulltime to the Occupy Toronto movement. Why?

There’s only 24 hours in a day.

How long did you live at St. James Park?  Were you there full-time or did you return home to shower/sleep on occasion?

40 days and 37 nights I think. A volunteer who lived near by let me take bubble baths at her place. She was very kind to Occupy. Tell me about your role at St. James Park and what is was like living/working there. The first ten days of Occupy Toronto were the most magical experiences of my life and restored my faith in humanity. The next thirty days tested me in ways I hadn’t experienced before. Day and night were very different in St. James Park. It really bothers me when people say Occupy Toronto doesn’t have any successes: we served 40,000 meals in a park and we did it with all of Toronto’s help. I never had to question whether Torontonians supported us, I saw them everyday bringing us food and care packages. As far as the food team: we did 40,000 meals from a park! No one can take that from us and it took a lot of dedication from some key people to make it work. Some say we were the only team to fulfill our obligation every day, but the marshals and medics weren’t far behind. In addition to food I also did police, union, and church liaison. Those were pretty significant responsibilities and I learned a lot. Police liaison was particularly challenging… It’s easy to write ‘zero-tolerance towards violence’ on a board and wiggle your fingers; enforcing it is a whole other ballgame. I wasn’t quite prepared for the volume of violent drunks and sexual aggressors we had, but I thought we handled it with a lot of maturity for such a nascent movement. Toronto’s infrastructure was likely the best of any Occupation, and even Occupy Wall Street praised our security mechanisms. I wish we’d left the park in a more organized manner and salvaged more of our materials though.

There was some controversy about your management style at St. James Park and a general meeting was held to exclude you from future Occupy-related organizing. What are your feelings about that?

I went to Occupy to do the most noble thing I could think of: feed everyone. When we were evicted from the park I tried to squat a building big enough for all of Occupy’s organizing. If anyone has a problem with that, then Occupy isn’t their movement. No one needs permission to act. The small number who criticize the food team’s inclusivity forget that we had the only person-of-colour with any significant responsibility in the entire camp, the most homeless and recovering addicts as bottom-liners, and the most women, likely because our space was one of the safest on campus. All those disparate groups operated as one, and we attracted people with our unity and focus. Breaking bread with people is spiritual; everyone from Anarchists to Zionists have to eat. The food team embodied that ethic. As far as being excluded from Occupy-related organizing… I find it funny that I didn’t have any of these problems until the Star put me on the cover. Literally the next day they were trying to vote me off the island at some private meeting. The day after that I was unanimously confirmed at a real GA, you can check the minutes. Occupy is an idea, there’s no membership card.

Why did you decide to keep your surname and background a secret?

I used a pseudonym with the agreement and consent of every reporter who approached me, as did most others in the Park. This isn’t a secret, and I’m disappointed the Star would go to such great lengths to expose a source. I do this interview under duress and I hope it’s the last. I DO NOT CONSENT TO THE DISCLOSURE OF MY LAST NAME, and I urge you to consider your ethics. Please, please, please observe my pseudonym because anything else exposes me to a lot of criticism, bullying, and physical threats. I DO NOT WISH TO BE IDENTIFIED IN ANY ARTICLE OR PUBLICATION.

Antonin, can you explain how the exposure of your last name would expose you to criticism, bullying and physical threats?

Please respect my pseudonym as it was a known and discussed pre-condition of all the interviews I did, especially those regarding the Queen Street Squat. It is extremely unethical for the Star to renege on that agreement. Revealing my name exposes me to significant and permanent threats to my personal safety, surveillance by police, discrimination in employment, and infringement of my privacy. Occupy is just one part of my life, and your story will severely impede the work I do in other spheres, be they commercial, volunteer, or private. In more detail:
PERSONAL SAFETY: My job as the park’s only reliable police liaison put me into direct and recurrent contact with some of Toronto’s most dangerous street people. I’ve personally handed over violent drunks, those with extreme mental illness, and sexual predators to police for arrest. My life was threatened numerous times in the process. One such crackhead already receives day-passes from the CAMH at U of T, despite sexually assaulting a woman at knife-point, and he quite clearly recognizes me. It’s one thing to have to deal with these guys when I encounter them at my school or in the street, it’s another for them to have one-click access to my entire life. You will be exposing me to very prescient and real threat of physical retribution from known and recidivist criminals if you reveal my name.
POLICE: 99% of the police I interacted with were good people whom I’d trust with my own children. 1% of police are beasts with a likely axe to grind if for no other reason that the tongue-lashings I gave them when they didn’t cooperate. Add CSIS, the RCMP, and private security to that list and you can understand how I’m concerned about future surveillance. I’ve caught five people following me on the street or subway since leaving the park, to say nothing of the dozens we encountered in the park. They might be police, they might be reporters, but they’re definitely not interested in identifying themselves when I confront them. You will be exposing me to continued surveillance by public and private security services if you reveal my name.
EMPLOYMENT: Regardless of our political beliefs the fact remains that the 99% are employed by the 1% and affiliation with organizations such as Occupy Toronto will be frowned upon by employers and have an impact on existing and future employment. I will lose the only way I can support myself if you reveal my name.
PRIVACY: My personal history and background mirrors the histories or backgrounds of many other members of Occupy Toronto, and many also used pseudonyms. I have NEVER identified as a spokesperson, I have never been elected to such a post, and I’ve never drawn material benefit from my affiliation with Occupy Toronto. The only group to identify me as such was the Star. Ergo, it is dishonest for the Star to profit from my testimony at the expense of my privacy.

Are you still involved with the Occupy movement?

It’s hard to even want to align with Occupy Toronto anymore. I came for a revolution and now I find myself encircled by a group of neo-hippie repeatniks who float somewhere between consternation and indifference. I prefer the international Occupy movement. Many of Toronto’s bottom-liners were bought off by Sid Ryan’s cronies (Joel Duff, former CFS) within the first week with paid trips to New York for them and their girlfriends, pre-paid iPhones, etc (Dave Vasey, Lana Brite, Kevin Connyu, Nele Michaels, and Mischa Saunders). This is while our own logistics team refuses to give out tents or blankets to homeless people because ‘they aren’t part of the movement’. Having witnessed such graft so early on, I knew there’d eventually be a break. I met a few real revolutionaries in Toronto. They call me and we work on things together. I like the work of our teach-ins and Occupy the Bridge was a great bit of organizing. I’m done with “speakers lists” and “points of process” though, I just want action.

Do you have a job?

I’m a copy writer by trade and I freelance quite a bit but it’s not enough to make ends meet. Since you’ll be destroying my professional name in the process of selling banner ads, I can’t imagine the situation will improve.

Where and when were you born?

Belgium, Scorpio, Year of the Snake.

You mentioned you’ve lived on your own since 17. Please elaborate.

My parents kicked me out of my house when I was 17 so I lived on welfare in a boarding house. Later my parents tried sending me to a boarding school but that didn’t work either. I finished public school at 20, and then someone in admissions fucked up and let me into U of T. I’ve run businesses, volunteered, and lived like a normal adult since. It’s all very banal. You mentioned you’ve been on welfare.

Please elaborate – at what points in your life were you on welfare assistance and why?

I was 17 and homeless. You mentioned that you’ve become estranged from your parents.

What happened?

We live in different cities and different worlds.

What do your parents think about your involvement with the Occupy movement?

They don’t care about what I do.

Do you still receive financial assistance from your parents?

No, nothing.

Do you feel any empathy towards people who work in the financial industry, especially given the fact that your father is one of them?

I’ve been careful to answer only for myself in this interview but I’ll make an exception here: Occupiers feel empathy towards all people. Consumer capitalism breeds a conspiracy of self-interest and our problem is that system, not any individual or person. Also, I love my dad.

Are you proud or ashamed of your background?

Neither, but I’d like to be proud of our future.

What are your goals for yourself in life? What do you hope to do for a career?

I’m a creative person and I work in advertising and design. I’m a copy writer working my way towards Art or Creative Director. Alternately, revolution. I’ve heard “get a job” like a bazillion times now so if anyone out there has one, call me!

When you say you’re “back to being poor now,” what do you mean exactly?

People have different definitions of what it means to be poor. I have 46 cents in my bank account.

You mention your web company that was briefly successful – I’m assuming you’re referring to bounce2this.com. What did this company do? What company bought it out and when?

bounce2this created and hosted template based web pages, e-stores, and directory listings for SME’s. It’s all old-hat now but we were one of the first to do vanity domains, online WYSIWYG design, and co-located hosting. I was president and at our peak we had 5 employees. We were bought in 1999 by a marketing company which did our sales and owned the hardware.

Some people were surprised that you left EFUT temporarily for Occupy Toronto because you’ve always displayed such passion for your duties as president. I’ll rephrase an earlier question; what was it about Occupy Toronto that so appealed to you that you decided to drop such a longtime commitment to EFUT?

EFUT’s had four presidents. I’ve taken breaks before. The French Club is a great organization, but it’s not my end goal. The Occupy movement comes with the tacit acknowledgement that the base of all our problems is class. That’s what I’d been waiting for.

You say the first 10 days at Occupy were “the most magical experiences of your life.” Why?

All the love you gave out you got back.

You also say “the next 30 days tested me in ways I hadn’t experienced before.” Can you elaborate?

When the bars closed, bad shit would happen. I wasn’t quite prepared for the volume of violent drunks and sexual aggressors we had, but I thought we handled it with a lot of maturity for such a nascent movement.

You touched on this question but I’m hoping for something a bit deeper; any insight into why some Occupiers had such a problem with you? Is it because they resented you making decisions on your own? Is it because of a specific incident? Is it just schoolyard politics? Jealousy? What?

A friend of mine who knows about Oka and real occupation told me that when they break up movements, they target the people of action first. I think on the one hand you have organized labour trying to claim the Occupy “brand” for themselves and on the other you have the attention of corporatist governments. The result is somewhat predictable: divide and conquer. It’s how they did the Panthers, it’s how they did Biggie and ‘Pac, and it’s how they’ll do us. I’m just surprised our people fall for it so easily. Won’t work though: we ain’t going nowhere, we can’t be stopped.

Why did you choose the name “Smith”?

After Winston in 1984. Orwell knew that newspapers were an instrument of the 1% and that rewriting and controlling them would be the order of the day. Doesn’t really matter what you say today when an editor will just change it tomorrow. Kathy English knows what I’m talking about. So do Iraqis.

What, in your estimation, was the greatest failing of Occupy Toronto?

I thought we’d be there for three days and we lasted 40, so I won’t say Occupy Toronto “failed” at anything. Organizing a political movement while living in a park is very hard but we succeeded. If I had to identify weaknesses I’d say finance and mediation. Those things caught us off guard and we’ll do better next time.

What was the greatest achievement?

We converted a lot of very poor people to our side. Everyone began to understand that Occupy was a movement where no one would mistake kindness for weakness. I also think we’ve claimed a word and a set of symbols that stand for anti-corporatism and the class struggle. In the English language, where the powerful so easily rewrite history, claiming a part of language was very important. We need to have a dialogue about class and the environment and Occupy is that dialogue. As far as tangible achievements, I’d say 40,000 free meals in a park is pretty significant.

If Occupy Toronto were to set up another encampment, would you join? Why?

May 1st? Ya, I’ll be there. I love camping.

What was it like living on your own at 17?

Awesome and terrifying at the same time. Everyone in the house lived on welfare. It was like Bone-Thugs “First of the month” when them cheques came in; take-out, two-fours, and toking. The next three weeks we’d eat Kraft Dinner with no milk. The freedom was nice and the experience changed my whole world-view.

How long were you on welfare?

I was on student welfare for about 18 months.

Have you spoken to your parents at all since Occupy Toronto?

No.

Do you have any feelings of internal conflict about protesting the system that supports your father’s success and enterprises?

I’m not Luke, he’s not Vader, and it’s not quite that epic. I’m not trying to destroy capitalism or even wealth, just create a more sustainable distribution of resources. Besides, even the 1% agree that Goldman Sachs are crooks.

Has your family’s status as 1 per centers fueled your activism or hindered it?

My parents weren’t 1% until after I left home. I was one of my own accord thanks to the Internet. Please don’t mislead your readers. When you’ve seen both sides of the coin you realize two things: we can’t keep going like this, and it’s going to be hard. Those with power and money will not relinquish it kindly. Occupy is one of the last olive branches, so we should all nurture it.

No one is going to deny someone’s right to make a living and support themselves. But how legitimate – or effective – can a protest be if you are simultaneously and directly benefiting from the sector of society you’re protesting?

Occupy Toronto took food from the dumpsters of grocery chains and day-olds from Starbucks on the way to feeding thousands of poor people. I’d say that’s legitimate and effective.

You come from a one per cent family and have spent time as a one per center yourself. Given this context, what caused you to become so involved in Occupy Toronto?

As rich as any individual 1% may be, their wealth and power is dwarfed by that of corporations. That’s what being a 1% taught me. I came to Occupy Toronto for a variety of reasons, chief amongst them is that corporations aren’t people and they have no unalienable rights. Corporatism has created a system of markets where profit isn’t even enough, we must always have growth, growth, growth. So we create derivatives and start counting debts as profits and somewhere along the way we realize that money was never real, and that our wealth rests on the barrel of a gun, generally pointed at a non-white (read: poor) person. Iraq and oil are the contemporary example, but history books document a series of similar enterprises. This ‘praxis-of-evil’ (self-interest, racism, militarization, and indoctrination) has lead us to our current point where corporations are essentially expensing our human rights. Corporations aren’t people, they have no unalienable rights. If the international Occupy movement could rally to change that one simple thing economic and climate justice would quickly follow. Our human rights are being expensed under the rule of a “Letters Patent” or “shareholders”; a gluttonous pack of paper proxies. That has to change and that’s why I occupy.

n.b. Despite Antonin Yvon Mongeau’s reservations about revealing his complete name, we’ve decided to include the interview here in its entirety given that it is already available at several sites online.

UofO Student Appeal Centre director Mireille Gervais appears to support the plaintiffs,

I’ve seen some of the evidence that supports the claim, and I am continuously in shock to see how far the university’s misbehaviour and egregious behaviour in this case has gone. There’s documented evidence to support the fact that there really was a conspiracy toward these students.

The university however released a statement yesterday denying the allegations. The CBC reports that the university spokesperson stated,

…the university “denies all allegations of wrongdoing made in the suit. The claims are entirely false, and the university will be vigorously defending itself against this suit, and defending the quality and the integrity of its medical education programs.”

The statement goes on to say that the faculty of medicine “has been welcoming foreign medical students for more than 30 years, and boasts one of the largest numbers of foreign residents and fellows in Canada, the majority of whom have successfully achieved the required academic standards for graduation.”

“We take pride in our diversity and high standards, and believe that they contribute to our excellence,” the university said.

The plaintiff’s Statement of Claim, which is over 120 pages long and was filed on November 24, 2011, is below.

ABA-ALKHAIL Et Al vs University of Ottawa Et Al

Update
A reader contacted us to provide the following materials. Although the veracity of the emails cannot be vouched for directly, the related motion is confirmed as an actual reported decision:

Neuroleaks Decision + materials

Cavalluzzo Hayes Shilton McIntyre & Cornish released a legal opinion today concluding that Toronto Mayor Rob Ford did not have legal authority to cancel Transit City.  The opinion concludes that the mayor does not have independent power to bind the city, and only exercises power delegated by council or specific legislative responsibility.
Also see Pulat Yunusov’s previous post, What can the mayor of Toronto really do?

The Executive Summary of today’s opinion follows:

Throughout the period 2007 to 2010, the Toronto Transit Commission (the “TIC”) and the Toronto City Council (“City Council” or “Council”) received reports, considered, and voted on aspects of what was commonly known as Transit City. They designated four priority projects. They voted funding allocations for these projects. City Council declared Transit City its first priority with respect to transit.

On December 1, 2010, newly elected Mayor Ford, without the approval of City Council, purported to cancel Transit City. He directed that work on Transit City be stopped, and that resources be allocated to other projects as he directed. The TIC followed this direction. On or about March 31, 2011, again without the approval of City Council, Mayor Ford purported to enter into a Memorandum of Understanding (the “Mayor’s MOU”) on behalf of the City of Toronto with the Province of Ontario and Metrolinx, the province’s transportation agency.  Under the Mayor’s MOU, Mayor Ford purported to confirm the intent of the City of Toronto to end Transit City, make alternative transit plans, and reimburse Metrolinx for non recoverable sunk costs associated with the direction of City Council to implement Transit City. There are two major issues with respect to Mayor Ford’s conduct with respect to Transit City. First, he did not follow the proper procedure for obtaining City Council’s authorization to rescind Transit City and develop and approve an alternate plan. Second, he purported to enter into the Mayor’s MOU on behalf of the City of Toronto without City Council’s approval, and, more importantly, appears to have acted on the Mayor’s MOU without first obtaining the authorizations the document itself requires to be operational.

As we further discuss below, Mayor Ford did not have the authority, without the approval and direction of City Council, to:

1. Cancel Transit City;
2. Direct the TIC Chief General Manager to redirect resources away from
Transit City initiatives;
3. Direct the TIC to develop a new transit plan; and
4. Sign the Mayor’s MOU purporting to establish the intent of the City of Toronto to end Transit City and make alternative transportation plans, when Council’s intent to date as established by Council resolutions is to support Transit City.

City Council, of which Mayor Ford is a part, has the authority to do those things. It has not done so. The Mayor has not taken these initiatives for approval to City Council. Under the City a/Toronto Act, the power of the City resides in City Council. The Mayor of Toronto has very little independent authority beyond his role as head of City Council. Unless specific power is delegated to him, the Mayor does not have the authority to speak for the City independently.

Below, we discuss the history of Transit City, with particular focus on the steps taken by City Council to approve and implement the program. We then discuss the municipal legal framework with respect to the authority of the Mayor of the City of Toronto. We conclude by examining the steps taken by Mayor Ford since December 1, 2010 to determine whether he had the authority to do the acts he has purported to do.

Transit City Legal Opinion – Jan 26, 2012

Under the Ontario Class Proceedings Act, 1992 (“CPA”) [1], the Representative Plaintiff (“RP”) is a member of the class that in most instances commits to a bigger responsibility than all other class members.  Under section 5(e) of the CPA:

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members. 1992, c. 6, s. 5 (1).

The CPA is clear in that the RP not merely put his/her name to proceedings.[2]  Ideally, the undertaking is one of giving instructions to counsel and making decisions that affect the rights and potential success for the whole of the class.[3]  In many situations the RP is the driving force in identifying the claim, choosing counsel, advancing the claim and in bringing the proceeding to result.[4] In Ontario courts show reluctance in awarding more compensation to the RP and where there is quantum meruit[5] basis for this higher compensation, portions of disbursements are usually awarded.[6]  At the far end of the deleterious effects weighing against more compensation for RPs is the potential for corruption similar to what lead to the conviction of top Securities Class Actions counsel in United States (US).[7]

There are arguments to be made for and against a more liberalized access of an RP to more compensation than the rest of the class.  Premise in support of more compensation is the incentive that may seem necessary to motivate individuals would otherwise not take on the responsibility and potential liability.  More compensation may only seem fair for individuals who have put time and effort away from their daily living activities to contribute to a cause through which every other class member may be enriched with little effort especially where the compensation is small.[8]  On the other hand, another question that must be addressed is why the RP should get more compensation in Cy-près distributions where no one in the class would get any pay out for example.  There is a possibility for bringing the administration of justice into disrepute when the RP could always access a greater level of compensation than the rest of the class who may have been harmed hypothetically in the very same way because of the Defendant’s conduct.  The other concern is that greater compensation for the RP would risk creating “plaintiff mills” such that lead to Private Securities Litigation Reform Act by the US Congress.[9]  The experience of criminal convictions for some of the top class actions lawyers in the US indicates the potential for corruption.  It may be fair to consider the minute possibility for RPs in Ontario to benefit from judicial decisions in the same way that has landed these US counsel in prison.[10]  It is possible to assess what courts should consider when deciding the net outcome of liberalizing the test for awarding more compensation to the RP beyond other class members by balancing the deleterious and salutary effects of providing more compensation to the RP.

1. B.  POTENTIAL FOR DELETERIOUS CONSEQUENCES

1)    Has Judicial Discretion already occupied the Field? 

It is possible to argue that an RP may derive benefits from performing his/her role and hence make further compensation unnecessary.  These may include psychic benefits such as the pleasure of having his/her name represented by class counsel, or participating in an “interesting and stimulating undertaking.”[11]  The RP also benefits, along with other class members, from the compensation that a successful litigation would produce.[12]  Evidently, the mere amount of time and effort that is spent by an RP is not the only question that must be addressed.

In Huras v Primerica Financial Services Limited[13]an agreement on settlement was reached which provided small compensation to each member of the large group of class members.[14]  The settlement provided for additional compensation to be paid to the Ontario and British Columbia RPs – $3000 and $2000 respectively.[15]  By way of contract, in Sutherland, Justice Winkler disallowed a claim where the RP sought compensation for work related to the administration of the settlement fund which was not strictly “necessary” and did not result in any monetary gain to the class members.[16]  Meanwhile, in some cases it was decided that class RPs are entitled to be reimbursement when they financially contribute to the financing of the litigation.[17]  In addition if class members are going to assist the administration of a settlement fund, they were entitled to be compensated for their out-of-pocket expenses.[18]  The judiciary has taken the quantum meruit idea and through judicial interpretation of the concept on some occasions award RPs for their work.  Cases are evaluated on their merits.  The status quo argument is that judicial discretion is the way to balance the polycentric effects of more compensation to the RP.

2)  Conflict of Interest between the RP and the Rest of the Class in its Clearest Form: The Cy-près Settlement

In Sutherland, Justice Winkler raises the caution that more compensation for the RP who benefits from the class proceeding to a greater extent than the class members beyond the damages suffered by him/her would create an appearance of a conflict of interest between the RP and the class members.[19]  He notes that a class proceeding cannot be seen to be a method by which individuals can seek to receive personal gain beyond any damages.[20]  Hence, the appearance of a conflict of interest is something our Justices carefully consider.  Although it is reasonable to suggest that the conflict would be difficult to measure since if the RP is motivated and fights for the incentive award, it may be more likely that the lawsuit may succeed.  Incentive awards may help increase competition amongst class members and the most eligible candidates may be able to work as an RP which would in turn promote access to justice, judicial economy, and behaviour modification[21] for the whole class.  At its heart, RP – class member’s relationship is a symbiotic relationship and the conflict of interest concern requires further study.

In Garland[22] where the court settlement was in the form of Cy-près, the RP, Mr. Garland requested over $95,000 of compensation and with consent of counsel on further appeal he eventually received $95,000 in the form of disbursement.[23] Although there was no precedent for an award of such an amount in Ontario, the presiding Justice Cullity was satisfied with Mr. Garland’s contribution to the success of the proceeding to an extent that exceeded significantly what might properly have been expected of the RP in such a case.[24]  On motion to approve settlement, RP sought compensation for 1,584 hours spent on case over 12 years, estimated that time cost him between $102,960 and $134,640 in lost income from his business.[25] Contribution related to functions necessary for preparation or presentation of case and resulted in direct financial benefit to class.[26]  Mr. Garland took initiative in seeking legal advice and in instructing counsel to commence proceedings and was instrumental in keeping legal team together when class members sought to withdraw from proceedings.[27]  Justice Cullity states in paragraph 42 of his judgement that in Sutherland, the recovery was $2.25 million and the RP had requested $80,000 to be paid out of the amount recovered.  In distinguishing Windisman[28], Winkler J. had stated that in Sutherland the work of the RP was unnecessary to the preparation or presentation of the case. Indeed, their work did not begin until after the settlement had been structured.[29]  That the work of the RPs did not result in any monetary success for the class and to be compensated in the manner requested they would be the only class members to receive any direct monetary compensation. The entire settlement is in the form of Cy-près distribution he argued. In Garland, the RP was found to have satisfied the test stated in Windisman and in the same way in which counsel is entitled to monetary compensation while every class member has to be satisfied with the Cy-près distribution the RP also received monetary award.  The test has been set narrowly because of comments of Justice Winkler with respect to the possible inconsistency between the concept of a Cy-près distribution and an award of an amount of compensation to an RP.   However, in Garland, Justice Cullity accepts that there is a chance for an appearance of conflict of interest that could arise if such compensation were to be awarded routinely.[30]  However, because the test was set strictly, the judicial discretion to award compensation in a Cy-près in distribution Garland would not open the flood gates of conflict of interest amongst class members.

The concern regarding a judicially invented inherent conflict of interest amongst class members and the RP if awards of compensation were to be liberally provided to the RP has led to the narrow Windisman test.  This deleterious effect for a conflict of interest is most exemplary when a Cy-près distribution is negotiated for the class.  A strong argument continues to lurk against liberalizing the test for more compensation given its potential for creating a conflict of interest amongst class members especially in cy-près distributions.

3) RPs in the United States and the potential for corruption

It is fair to suggest that perhaps the media coverage of the 2007 convictions of plaintiff counsels in a large US Class Actions Law Firm has reduced the reputation of plaintiff-side lawyers in the eyes of the public. [31]  When top Class Actions counsel are indicted for creating “plaintiff mills,” it is possible to imagine that there may also be a minute risk that courts may in their own way help develop professional plaintiffs if they were to provide a liberal test for allowing compensation on a systematic basis to all RPs.  The US Congress fully banned “incentive awards” to RPs through Securities Litigation Reform Act (PSLRA) of 1995.[32] A potential deleterious effect of compensation beyond the rest of the class is the possibility of individuals merely seeking profit to race towards courtrooms seeking the position of RP.

C.          SALUTARY EFFECTS WEIGHING IN FAVOUR OR MORE COMPENSATION

1)    Level of RP’s Responsibility and Liability

             The initial report of the Ontario Law Reform Commission (OLRC) identified access to justice, judicial economy, and behaviour modification as the central role of suits proceeding under the CPA.[33] Such goals would only be fulfilled with the presence of appropriate RPs with the level of incentive to take on the burden and liability that is inherent in the RP.  It may seem only fair that a successful litigants fighting with his litigation counsel team to also be reimbursed especially in cases where a Juris Doctor degree may be the only thing separating the counsel and this hypothetical exemplary RP. 

An RP tends to devote a great amount of time in litigation in comparison to the “absent” members of the class.[34]  The RP must swear affidavits, and may be subjected to cross-examination even before class certification stage is decided.[35]  In Windisman[36]the court reasoned that although ordinarily, the RP was not entitled to be compensated for the time and effort expended in relation to prosecuting an action, there was an important distinction to be drawn with reference to class proceedings.  Since the RP undertakes the proceedings on behalf of a wider group and that wider group will, if the action is successful, benefit by virtue of his/her effort as the plaintiff class would be enriched at the expense of the RP to the extent of the time and effort.  Hence by showing that he/she gave an active and necessary level of assistance in the preparation or presentation of the case and that such assistance resulted in financial success for the class, this RP may be compensated on quantum meruit bases for the time spent.[37]  This decision allowed for a discretionary level of awarding an RP with compensation beyond the rest of the class because of a high level of dedication and effort.

It is very clear that RPs incur costs in performing their role.  Even “figurehead” plaintiffs incur the costs of learning about the case, as they must display some familiarity with and responsibility for the case in order to satisfy section 5(e)(i) requirement to “fairly and adequately represent the interests of the class.”[38] Defendants also typically take the deposition of the named plaintiff which is an experience that can be time consuming and demanding to someone not familiar with the legal system.[39]  Named plaintiffs also run a slight, but potentially worrisome risk of being saddled with sanctions if the litigation turns out badly and they are not indemnified by class counsel.[40]  These costs can be significantly greater when the RP assumes a more active role in selecting or supervising counsel, as in the case of private securities litigation or as the court in Windisman suggests in situations when the RP may indeed be seeking to meet the test for compensation beyond rest of the class.

Furthermore, in some cases such as pattern or practice employment discrimination actions the RP may also experience dangers in the form of reprisal or loss to reputation.[41]  The level of risk and responsibility suggests the obvious danger for a net loss to the RP.  Historically in Ontario, this additional work is not compensated:  that is, “for the purpose of assessing entitlement to damages, the RP is treated like any other class member.”[42]  However, a strong argument can be made for the salutary effects of providing an RP compensation that reimburses their dedication and hard work.  Especially in situations where an RP- the only member of the class that has to show extraordinary devotion and effort – the courts should balance the factors in favour of liberalization of the Windisman test.

2)    The Services to Access to Justice by Providing Individuals with Necessary Incentive for Acting as RP

At its heart, the balancing that is necessary seems to be to avoid a situation where legislators need to step in to avoid the danger of courts developing “professional plaintiffs” or provoking conflict of interest between class members and the RP for example – as was necessary in the US Securities Actions – and on the other hand providing individuals with the necessary incentive to undertake the representation and presentation of the interests of the class as a whole.   The reality is that the RPs must swear affidavits, and may be subjected to cross-examination even before class certification is granted.[43]  The RP alone will be subjected to document discovery and examinations after discovery at the initial stage of the proceeding.[44]  Commentators working on the plaintiff side provide us with their experience arguing that RPs are not usually individuals who assume the role for a “quick buck.”[45]  These commentators further suggest that people with only monetary interests are more likely to stand back and let someone else do the work for them RPs tend to be firmly committed to the particular cause at hand. [46]  Perhaps to provide individuals with a fair incentive to become involved as an RP for the sake of judicial economy, behaviour modification, and access to justice of a whole class of people can be evaluated as a mitigating factor in response to the concern of Ontario Justices concerned about inciting conflict of interest between an RP and the class.  The problem is that despite even the strongest of convictions, an individual will think twice before agreeing to take on the role of the representative plaintiff.  In particular, who would risk a cost if their role is in cases where no monetary or at most a small amount of money may be recovered as was the case in Markson and Cassano[47]?

There are also lessons to be learned about providing an incentive award to RPs through a more liberalized test from our neighbours to the south.  Prohibition of compensation beyond the rest of the class in the Private Securities Litigation Reform Act (PSLRA) by the US Congress was strongly attacked by a comprehensive quantitative study in 2006.[48]  Although opinions change based on whether a paper is written by practitioners and academics on various sides of the issue, this paper seemed to provide a fair and balanced view on the negative consequences of the PSLRA prohibition of incentive awards to RP in securities Class Actions.[49]  In addition, US Congress’s Class Actions Fairness Act of 2005 (CAFA), characterizes more compensation for RPs in the area of Securities Fraud as one of the “abuses” of Class Actions practice the situation in which “unjustified awards are made to certain plaintiffs at the expense of other class members.”[50]   The 2006 study attacks the reforms claiming that outside the private securities litigation context, courts regulated the grants of incentive awards reasonably and a total ban of incentive awards in securities Class Actions was heavy-handed.[51]  The Congress had attempted to enact rules that would avoid the abusive litigation that took place there when “professional plaintiffs” raced to the courthouse to become lead plaintiffs in a suit.[52]  To address this, US Congress limited the role of the RP to the “most adequate plaintiff.”[53]  Thereafter, the PSLRA specified criteria for courts to determine the “most adequate plaintiff,”[54] including in the factor to determine the RP as “in the determination of the court, has the largest financial interest in the relief sought by the class.”[55] As a result, the PSLRA sought to eliminate the monetary motivations for “professional plaintiffs” to be the RP by compensating on a proportional share of the stock ownership.[56]  According to the empirical study in 2006, the institutional investors that Congress hoped to lure as class representatives likely incurred significant opportunity costs and may be discouraged from serving if they cannot receive adequate compensation.[57]  Hence, the question remains, what’s the incentive for an individual to volunteer for most likely burdensome task of representing the class?

In Ontario some plaintiff counsel report that despite indemnification guarantee in case of a failed lawsuit, many ideal RPs ultimately decide not to take on this role.[58]   It is important to consider whether individuals would burden themselves with the task of becoming an RP if they can just wait for someone else to complete the work especially where every class member would receive either no monetary benefit or an amount that is very small.  Where Cy-près distributions are handed out or in cases where the recovery is small, RPs may even experience a net loss because the small remedy is not enough to cover the increased costs of serving as the RP.[59]  In other cases, the class member’s expected compensation may surpass the costs of acting as RP, but “free-rider effects” make the individual unwilling to go forward.[60]  The “free-rider effects” can result in failure of litigation if for example no one risks volunteering as RP.[61]  Hence, the most important salutary effect for more compensation is providing the necessary amount of incentive for a great number of individuals in the class to become willing to work as an RP.

D. CONCLUSION

Courts in Ontario continue to rule on the topic of more compensation to the RP with reluctance and hesitation.  Most Judges seem to focus on the reduction of the conflict of interest between class members and the RP rather that aiming to provide any sort of monetary incentive to RPs even where there are hints of quantum meruit basis for such payment.[62]  Where these incentives seem most necessary – to provide the necessary incentive in Cy-près and small-return settlements, the concern for conflict of interest seems to become the central question.  This clearly is a dilemma that every court must consider in balancing the salutary and deleterious effects of providing compensation for the current RP and an incentive for potential future RPs.  The CPA was enacted so that the RP does not merely “put [his/her] name to proceedings.”[63]  Ideally the RP’s undertaking is to give instructions to counsel and make decisions that affect the rights and potential triumph for the whole of the class.[64]  The motivation that is necessary to take on this responsibility and the amount of energy and time that is spent in litigation are strong arguments in support of liberalizing the Windisman test through judicial discretion.  On the other hand, there are risks associated with a system that would constantly compensate RPs beyond the rest of the class.  This way of compensation may provoke an atmosphere ripe for conflict of interest in a relationship that ought to be close to a symbiotic interaction.  The CPA legislators did not want to turn Class Actions into a “playground for mere seeking of profits.”[65]  For example in Cy-près distributions where no other class member receives any compensation, sole monetary compensation for the RP may seem unfair but no compensation at all to the RP may mean a net loss to that individual.  Hence a balancing of the positive and negative effects of more compensation may be the difficult path that every Justice must endure.

The good news is that the experiences of some practitioners in the field suggests that the potential deleterious effects for RPs motivated solely by monetary gains is somewhat neutralized, it is reported that such individuals are more likely to stand back and let someone else do the hard work for them.[66]  Advocates for more compensation further suggest that most RPs tend to be firmly committed to the particular cause at hand.[67]   Despite the need for scepticism, it is without a doubt that an individual will think twice before agreeing to take on the role of the RP.[68]  A judicial balancing of such factors is helpful in deciding the format of compensation for an RP.

Taken together, I contend that these claims represent the present scope of arguments for and against more compensation for the RP under the CPA, and it is on these grounds that Canadian courts should continue assess the viability of such a request by the RP.  Admittedly, it is still possible that a trial court might find for the RP in a class proceeding requesting more compensation despite the difficult test set in Windisman. Yet for all the reasons above, I think that it is unlikely — and this is not necessarily a bad thing. If a Class Action ends with all sorts of conflicts of interest and individuals tempted to make a living from becoming a “professional plaintiff”, attention will likely be focused on the need for substantive Class Actions reform and lawyers may find themselves in great ethical dilemma.  The US experience of corrupt plaintiff counsel is certainly a concern must not be easily dismissed.  Courts should carefully assess how settlements balance access to justice; will liberalizing the Windisman test be fair to the whole class? What value do we ascribe to access to justice, judicial economy, and behaviour modification and a settlement process free of corruption and conflict of interest? These are the key questions. If we are willing to organize resources around the ideas that were promoted in the OLRC’s vision for class proceedings, we must be forthcoming with the way that we evaluate the role of the RP.

If we believe that the success of Class Actions very much depends on the existence of RPs willing to work for the success of the whole class, a decision must be taken either through legislation or judicial edict to allow for more ways to provide individuals with the necessary incentive to take this role or simply accept the risk that some RPs will be facing the very real danger of net loss. Spurred by a more liberal test for compensating RPs, settlements would provide an adequate deterrent to those who would otherwise rather sit on the sidelines when they may in fact be the best candidate for the role of RP.  Until such a deci­sion is implemented, it is difficult to see how we can increase the interest for taking on the role that most people may very well be tempted to pass onto another class member.

The Seven Sister law firm Davies LLP ran the above ad in several issues of Obiter Dicta, Osgoode Hall’s law student magazine, the last one running on January 9, 2012.  The law firm is known for working its law students and associates exceptionally hard, earning it the informal nickname, “Slavies.”

As you can imagine, outrage ensued.  Especially worth reading is Osgoode Hall’s Kisha Munroe, who stated in a letter to Obiter Dicta on January 16, 2012,

That Davies saw fit to run an ad invoking the shameful, genocidal, dehumanizing practice of forced, unpaid, lifelong labour and suffering that was essential to the power the Western world now enjoys is despicable.

What is even more offensive is that the legacy of the Trans-Atlantic slave trade, is still alive and well with regard to disparities in access to employment, education, wealth and justice that the descendants of slaves still suffer. It is beyond distasteful for them to jokingly compare the rarified privilege (however rigorous) of working at a Bay Street lawfirm with this history.

To their credit, Davies LLP did print an apology in the paper,

…

The intent of the advertisement was instead to try to suggest that the nickname students have used for our firm for many, many years should not dissuade students from considering applying to us for summer or articling positions. We were aiming for some selfdeprecating humour. It did not occur to our team that we would be seen as making light of slavery, rather than simply poking fun at ourselves. Obviously it should have.

We thank those who brought this to our attention and accept their criticism. We sincerely apologize to those who were offended. We will not run the advertisement again.

Frances Mahil
Director, Student Affairs
Davies Ward Phillips & Vineberg LLP

No public apology is available yet on the Davies website.   Yes, this is an issue that concerns and has offended a much broader audience than just Osgoode Hall.

The fact that this occurred in the first place does highlight the insensitivity and insularity that exists in Canada’s “top” law firms.  I can already hear the voices of many lawyers I know dismissively saying that those offended are “too sensitive.” In fact Andrew Emery, another 2L at Osgoode, already wrote in to the paper,

There is nothing offensive about playing on the perception that Davies students work like slaves. It is as offensive as just saying the word “slave”. Just saying a word doesn’t make it offen sive. The joke is so mild even my Grandma could laugh at it and she thinks women shouldn’t show their elbows on television.

The lack of sensitivity by major law firms, especially at the decision making level, should actually be used to hold them accountable.  Apparently Davies LLP was not concerned enough about dissuading minority students from applying to summer or articling positions.  And rather than realizing that the strenuous hours and unrealistic work assignments that have fostered the negative reputation should be an incentive to change the firm culture and create better internal supports, the firm still thinks it’s reasonable to flaunt this reputation as “learning experience” akin to “slavery.”

Davies does have a “diversity page” on their site which states,

The creativity and different perspectives that are brought to our practice by lawyers from diverse backgrounds and communities have helped to define who we are as a firm today, and we believe that they will continue to be key factors that enable us to endure as market leaders in our chosen areas of practice.

Their NALP profile states under “diversity,”

Our goal is to recruit, hire, retain and promote exceptional students and lawyers who share Davies’ commitment to excellence…

It continues,

Our goal is to hire exceptional students who share our commitment to excellence. We are committed to our student program as the primary source of new lawyers and hire back students anticipating they will become partners of the firm very early in their career. This early partnership structure is unique among law firms and we have a very high ratio of partners to associates. As a result, very early in their careers our talented young lawyers learn to act like owners, rather than employees, and to view the firm’s relationships with its clients from that perspective.

Unlike many American law firms, Canadian ones are highly resistant to releasing statistics about their associate and partner diversity.  Of course you don’t need much time to flip through a website to get an idea of what kind of diversity they have.  And as well all should know, the real issue of  law firms diversity has a lot more to do with retention than it does recruitment.  Nobody announces it on their departure, but the insensitivities of law firm culture is one of the primary reasons why minority lawyers don’t feel fully accepted, can’t be completely productive, and ultimately choose to find more comfortable work environments.

But aside from dissuading law students and even lateral hires, there could be other implications for insensitivity by law firms.  Some clients in the American legal context have historically demanded proof that a legal team will have sufficient diversity.  In-house counsel of minority backgrounds may opt to choose another large law firm to do their legal work instead.

In other words, there are financial consequences to these poor decisions.  And although the managing partner may not be able to identify on a budget why some clients are choosing alternative service providers or explain recruitment issues, it is worth noting:  in today’s world, the “slaves” actually fight back.

You can read the article on the Canadian Lawyer 4Students site or on my blog: Simon Says.