You Gotta Fight For Your Right' To Change Counsel: The Right Of A Proposed Representative Plaintiff In A Class Action To Change Counsel

• Published date: 01 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Class Actions Monitor, Kyle McMillan and Colleen Bonnyman

Does a proposed representative plaintiff in a class action in Alberta have the right to change their counsel mid-course, and if so, when should the Court interfere with this decision? According to the recent decision of Singh v Glaxosmithkline Inc,¹ a proposed representative plaintiff does have such a right. Ultimately, the Court will interfere with a proposed representative plaintiff's choice of counsel only where that choice is at odds with the interests of the proposed class. This decision relies heavily on Fantl v Transamerica Life Canada ("Fantl")², a non-binding but persuasive case from Ontario that sets out the tests for a party wishing to challenge a proposed representative plaintiff's decision to change counsel.

Background

In January 2019, counsel for the proposed representative plaintiff in this case (the "PRP") appeared at the certification hearing for the class action. Counsel subsequently left his law firm (the "Former Law Firm") to work at a new law firm; as a result, on April 19, 2019, the PRP served a Notice of Change of Representation seeking to appoint counsel and his new law firm as counsel of record. Further, on May 3, 2019, the PRP filed a formal Notice of Change of Representation seeking to name a consortium of two law firms (the "Consortium"), including counsel's new law firm, as counsel of record. In response, on May 15, 2019, the Former Law Firm filed a substitution application on behalf of a New Proposed Representative Plaintiff ("New PRP").

The PRP subsequently filed an application seeking to withdraw as PRP; however, she later served an affidavit where she appeared to withdraw her previous application and stated that she wanted to continue on with the class action with the Consortium as her counsel.

In response to this series of events, the question arose as to whether the PRP could change counsel without leave of the Court. While the Former Law Firm argued that the PRP needs leave, the Consortium relied on the tests laid out in Fantl to support its argument that the PRP is entitled to change counsel without leave. Ultimately, the Court accepted the Consortium's position.

Analysis

In order to determine whether the PRP's choice of counsel ought to be set aside, the Court applied the test set out in Fantl. Thus, in Alberta, as in Ontario, a proposed representative plaintiff who wishes to change counsel does not require leave of the Court in order to do so.

In Fantl, the Court of Appeal for Ontario laid out a comprehensive test...