Class Actions 'belong To Class Members', Not Their Lawyers: Alberta Court Of Queen's Bench Clarifies Roles Of Representative Plaintiffs

• Published date: 21 May 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr Craig Lockwood and Amanda Arella

The interplay between the roles and responsibilities of the representative plaintiff and class counsel in the context of a class action has been the subject of significant judicial commentary over the years. Class proceedings are often perceived as being "counsel-driven" insofar as the representative plaintiff is seen as being extraneous to the strategic decision-making of class counsel. However, a recent decision of the Alberta Court of Queen's Bench, Singh v. Glaxosmithline Inc, 2021 ABQB 316, highlighted the demarcation between their respective roles and reaffirmed the independence of the representative plaintiff. Among other things, the court delineated the respective rights and obligations of the representative plaintiff, class counsel and the court.

In Singh, the proposed representative plaintiff sought to change class counsel in order to continue representation by a lawyer who had moved between firms. The proposed representative plaintiff's prior firm took the position that leave of the court was required. The Court held that the proposed representative plaintiff was not obligated to seek court approval in order to change counsel. However, where this decision was challenged, the court confirmed its jurisdiction to review the proposed representative plaintiff's decision.

The test for reviewing plaintiff's choice of counsel

In its reasons, the Court relied on the test articulated by the Ontario Court of Appeal in Fantl v. Transamerica Life Canada, 2009 ONCA 377 to determine whether the decision to change counsel, once contested, is appropriate. The test has three parts:

1. Has the plaintiff chosen competent counsel?
2. Were there any improper considerations underlying the choice made by the plaintiff?
3. Is there prejudice to the class as a result of the choice?

If the above three criteria are satisfied, the court ought not to interfere with the proposed representative plaintiff's choice of counsel.

In this case, the Court found that all three criteria were satisfied. First, on the issue of competence, the Court noted that the proposed representative plaintiff had properly retained adequate counsel. Second, the Court found no evidence of "improper considerations", and no indication that the change of counsel was motivated by an attempt by the representative plaintiff to gain a personal advantage that could not be shared by the class members. Third, the Court found the arguments of the plaintiff's prior firm that it would suffer economic prejudice as a...