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:
- Has the plaintiff chosen competent counsel?
- Were there any improper considerations underlying the choice made by the plaintiff?
- 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 result of the change of counsel to be irrelevant.
Interests of counsel not a relevant factor
In so ruling, the Court affirmed that the third step of the test was solely referential to the interests of the class. Relying on the reasons of Chief Justice Winkler in Fantl, the Court went on to note that class action legislation does not provide lawyers with "a vested interest in the subject matter of the lawsuit, entitling them to override the choices of a representative plaintiff in the litigation".
Court delineates role of the representative plaintiff
The Singh decision also illustrates the fact that the representative plaintiff is intended to play an important and distinct role in class proceedings. Neither class counsel nor the Court stands in the shoes of the plaintiff. Rather, it is the representative plaintiff who acts as "a genuine plaintiff' and is responsible for making decisions on behalf of the class, including choosing and instructing counsel. In this regard, the Court reaffirmed its earlier statement in LC v. Alberta, 2021 ABQB 24, to the effect that "class proceedings belong to the class members, not the lawyers representing them". Similarly, the Court acknowledged that the proper role of the court in a class action should not be that of a substitute decision-maker for the plaintiff. While the unique nature of class actions obligates the court to play a supervisory role throughout the proceeding, this role does not rise to the level of requiring the court's approval for every decision made by the representative plaintiff on behalf of the class.
The Singh decision reaffirms the fundamental principle that class actions should not be procedural vehicles for counsel-driven litigation. To the contrary, representative plaintiffs serve an essential and independent role. By extension, this same principle necessitates that the adequacy of the representative plaintiff – one of the criteria for class certification – should not be "rubber stamped" at the certification hearing, but rather should be meaningfully scrutinized by the courts.
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