Who Can Be A Representative Plaintiff Under Ontario's 'Class Proceedings Act, 1992'?

  1. INTRODUCTION

    Despite the voluminous case law on certification of class actions under the Ontario Class Proceedings Act, 1992 ("CPA")1, surprisingly little of it considers the qualities of an appropriate representative plaintiff. What emerges clearly, however, is that the threshold for appointing a suitable class representative has been set fairly low as courts apply the criteria listed in s. 5(1)(e) of the CPA:

    there is a representative plaintiff who would fairly and adequately represent the interests of the class; the representative plaintiff 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 the representative plaintiff does not have, on the common issues for the class, an interest in conflict with the interests of the other class members. It appears that, in most cases, the proposed representative plaintiff will be subject to little scrutiny and certification will be granted and the proposed representative plaintiff appointed so long as the remaining four certification criteria set out in s. 5(1) of the CPA are met.2

    The decision of the Supreme Court of Canada in Western Canadian Shopping Centres Inc. v. Dutton3 (along with two other Supreme Court of Canada decisions on class actions, referred collectively to as the "class actions trilogy", in which that Court recognized class actions even in jurisdictions without legislation governing class actions4) articulated the following three factors to be considered to ensure that the proposed representative plaintiff will "adequately represent the class" and "vigorously and capably prosecute the interests of the class": motivation of the representative plaintiff; competence of class counsel; and capacity of the representative plaintiff to bear the costs that may be incurred by the representative in particular (as opposed to by counsel or by the class members generally).5

    Together, these factors address the policy objectives of class actions, which are: judicial economy; access to justice (for plaintiffs); and behaviour modification (of defendants). The Supreme Court of Canada class actions trilogy has confirmed that class action legislation should be interpreted generously and in a purposive manner to give effect to these policy objectives. The Court must strike a balance between efficiency and fairness, that is, it should take into account the benefits the class action offers in the circumstances of the case as well as any unfairness that class proceedings may cause.6 Therefore, the determination of who will be a suitable class representative should be considered in that context.

  2. REQUIREMENTS OF A REPRESENTATIVE PLAINTIFF

    (a) Generally

    Class proceedings are often different from typical litigation in which a lawyer is approached and retained by a specific party to commence an action. In class proceedings, it is often the case that the lawyer has identified a meritorious potential class action (arising out of a product liability or other mass tort claim, for example) but no representative plaintiff or has been approached by a potential representative plaintiff who the lawyer perceives to be unsuitable. The process of searching for an appropriate representative plaintiff has sometimes been referred to derogatively as "trolling". In fact, there is nothing inherently improper in advertising for or interviewing and seeking out a suitable class representative for a meritorious case. Plaintiffs' counsel must always remember that evidence of the origin of the class action and the motivation and commitment of the proposed representative may be put before the Court (by the defendant, for example, on a certification motion or settlement approval motion) for scrutiny. The courts play a vital role in preventing an abuse of process in their broad discretion under the CPA.7 For example, as the case law referred to below demonstrates, it is improper to commence a class action naming a "token" representative plaintiff simply to toll the limitation period while a suitable class representative is found. Nor will a court countenance a "trial and error" approach whereby a proposed representative plaintiff is put forward while there are other representatives available "just in case". Moreover, the Court will be alive to the possibility of a "strike suit" (an unmeritorious claim advanced for the sole purpose of pressuring the defendant to settle), or a case where the benefits to be achieved in a settlement flow only to counsel and not to class members.8

    As a practical matter, plaintiffs' class counsel will want a representative plaintiff who meets all the requirements set out in the CPA and who is willing and able to assume the various obligations and responsibilities associated with acting as a representative of the entire class, including some or all of the following:

    instructing counsel; reading the Statement of Claim; participating in oral and documentary discovery (as required under s. 15 of the CPA); submitting to examination before the hearing of a motion or application, if necessary (as required under s. 16 of the CPA); giving notice of certification (as required under s. 17 of the CPA ), although this is ordinarily done by counsel under the supervision of the Court; accepting the liability for costs [s. 31(2) of the CPA] subject, of course, to any funding provided by the Class Proceedings Fund or an indemnity offered by class counsel; and communicating with the media. In only a few cases has the representative plaintiff been compensated for time spent in prosecuting the action on behalf of class members.9

    (b) Requirements under s. 5(1)(e) of the CPA

    (i) there is a representative plaintiff who would fairly and adequately represent the interests of the class

    This rather vague requirement has received little judicial comment but seems to refer to the personal characteristics of the proposed representative plaintiff and involves a consideration of whether there is anything that would make her/him unsuitable. It appears likely that the Court will consider the proposed representative plaintiff's "motivation" - a criterion referred to by the Supreme Court of Canada in the class actions trilogy - under this branch of the test.

    The requirement that the representative plaintiff "fairly and adequately" represent the interests of the class obviously means that the proposed representative plaintiff must be a member of an identifiable class which is capable of being represented by one person.10 Under the comparable British Columbia, Newfoundland, and Saskatchewan legislation, the Court may appoint a person who is not a representative of the class, but only if it is necessary to do so to avoid a substantial injustice to the class.11

    The Ontario case law has provided the following limited guidance on whether a proposed representative plaintiff will "fairly and adequately" represent the interests of the other members of the class.

    The characteristics of the representative plaintiff need not be exactly the same as those of the other members of the class where most of the facts pertaining to the issues to be tried are common to all and economy favours single representation12.

    Nor will a proposed representative plaintiff be disqualified for...

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