Representative Plaintiff Removed For Not Protecting Interests Of Class

In the recent decision of Azar v. Strada Crush Limited, 2019 ONSC 4436 Justice Morgan denied a motion brought by the representative plaintiff in a certified class action to appoint new counsel, and granted class counsel's cross-motion to disqualify the representative plaintiff. The decision affirms the Court's supervisory role as being to ensure the best interests of the class are protected, and also confirms the certification criterion under s. 5(1)(e) of the Class Proceedings Act—that the representative plaintiff fairly and adequately represent the interests of the class and not be in a conflict of interest with the class—must continue to be satisfied throughout the course of the litigation.

The Certified Claim

The underlying case is one of many overtime pay class actions, with the Class comprising past and present employees of the defendant company. The claim was certified as a class proceeding in August 2018, on behalf approximately 154 class members.1 At certification, the representative plaintiff advanced affidavit evidence of his duties and functions, which was found to be sufficient and appropriate to meet the plaintiff's burden of establishing "some basis in fact" for the claim and the proposed common issues.

At certification the Court held that there was no evidence of any conflict, that the "Plaintiff appears to be an appropriate representative", and was knowledgeable about most of the work-related issues in the claim. The Court concluded the Plaintiff as the representative "has been appropriately involved in instructing counsel to date and will doubtless continue to do so going forward."2

Plaintiff's Motion for New Representation

About one year later, the Plaintiff reportedly had a falling out with class counsel. He brought a motion to appoint new counsel, and this sparked two cross motions: one by class counsel seeking a determination that the Plaintiff was not competent and required a litigation guardian, and another by the defendants seeking to have the representative plaintiff disqualified.3

Underlying the dispute was a personal falling out between the Plaintiff and class counsel. The Plaintiff was first introduced to class counsel through a friend, Mr. Nunes, who was a former business partner and paralegal of class counsel. A falling out between counsel and Mr. Nunes in their business relationship then prompted litigation. Mr. Nunes attempted to convince the Plaintiff to fire class counsel and move the litigation over to...