Court File and Parties

COURT FILE NO.: CV-20-00640518-00CP DATE: 2022-12-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHAYNE BEAUCAGE, Plaintiff – and – TICKETMASTER CANADA HOLDINGS ULC, TICKETMASTER CANADA ULC, LIVE NATION CANADA, INC., LIVE NATION ENTERTAINMENT, INC., Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Sue Tan and Elie Waitzer, for the Plaintiff James Gotoweic, Christopher Richter, and Adrienne Oake, for the Defendants

HEARD: December 15, 2022

SETTLEMENT, counsel fees, and plaintiff’s honorarium APPROVAL

[1] The Plaintiff moves for an Order approving a class action settlement. He also seeks approval of class counsel fees and a small honorarium for himself.

[2] This class proceeding was by Statement of Claim issued on May 5, 2020 by Ryan MacIntyre. The action asserts claims in breach of contract, breach of the Consumer Protection Act (equivalent consumer protection statutes in other provinces except for Quebec), breach of the Competition Act, negligence, and unjust enrichment.

[3] The claims allege failure by the Defendants to provide the Plaintiff and the Class timely refunds for tickets purchased from Ticketmaster for concerts, sporting events, and other shows and events that were either postponed, rescheduled or cancelled in 2020 because of the COVID-19 pandemic and associated closings and health restrictions. The settlement agreement provides, among other things, that notices of the settlement will be disseminated by way of email and posting on Class counsel’s website.

[4] Shortly after the claim was launched, the original Plaintiff, Mr. MacIntyre, received a refund for his cancelled event. The current representative Plaintiff, Shayne Beaucage, was formally substituted as the representative Plaintiff on May 24, 2022.

[5] In June 2021, the parties commenced settlement discussions. These arm’s length negotiations focussed on the Defendants’ refund efforts and the entitlement of Class members to compensation in light of the Defendants’ ongoing refund efforts.

[6] It became clear in the course of the settlement discussions that, following commencement of the action, Class members had generally either received refunds, the option of refunds, or began attending their events having their events rescheduled to occur at a date in the near future.

[7] The parties reached an agreement in principle in January 2022, and a final settlement agreement was executed on August 16, 2022.

[8] Under the settlement agreement, Class members who qualify will receive $5 credits per ticket purchased in the form of an electronic Ticketmaster gift card. Class members who do not quality for these credits will benefit from a cy-près distribution of residual amounts of the cash portion of the settlement fund, to a charity of Ticketmaster's choice, after payment of expenses related to the administration of notice, class counsel fees and disbursements and honorarium.

[9] The residual amount left for this charitable gift is currently estimated to be in the range of $13,250. Ticketmaster has chosen an organization by the name of Musicounts as the recipient of the cy-près distribution. I am advised that this organization is a music education charity that provides musical equipment and other resources to music students. That seems to me to be a recipient that is appropriate to the subject matter of this case.

[10] By Order of this Court dated September 19, 2022, this Court approved the notice of settlement program. Notice of this hearing to approve the proposed settlement has been published on Class counsel's website and direct notice to the Class has been administered by JND Legal Administration.

[11] Class counsel advise me that of the approximately 800,000 class members, only 6 have contacted them to express opposition to the settlement terms. None of them made submissions to this effect at the hearing, although notice was provided to the entire class and I invited anyone in attendance at the hearing to voice any concern they might have.

[12] Taking all of these factors into account, I conclude that the proposed settlement agreement is fair, reasonable and in the best interests of class members.

[13] Turning to class counsel fees, counsel seeks approval of fees in the amount of $30,000, disbursements in the amount of $3,610.06, and HST in the amount of $3,900.

[14] Counsel submit that the amount of fees that they seek is substantially lower than the value of the work performed, and that it accounts for the risks undertaken by class counsel in advancing the case since issuance of the original Statement of Claim. It is also significantly lower than the contingency rate called for in the retainer agreement.

[15] The motion record shows that class counsel devoted a substantial number of hours to this case. These efforts have paid off in refunds and a successful settlement for the class members.

[16] Class counsel’s requested fee is a modest one. It is well in line with the case law and principles governing fee approvals for class actions in Ontario. I have no hesitation in approving it.

[17] In addition, class counsel request an honorarium for the Plaintiff in the amount of $500. While Mr. Beaucage did not have to engage with this action all the way through a contested trial or even a contested certification motion, his involvement in the settlement negotiations consumed his time and effort in a recognizable way. Given the rather small size of the honorarium, it seems to me that by stepping up to fill the role of representative Plaintiff, Mr. Beaucage is deserving of this award.

[18] The settlement, class counsel fees (together with disbursements and HST), and honorarium for the representative Plaintiff are hereby approved. There will be Orders to go as submitted by Class counsel.

Date: December 15, 2022 Morgan J.