Every lawsuit needs a plaintiff. Class actions, however, also require that the plaintiff be able to properly represent the class in order to obtain certification and proceed to trial.
The common law provinces have legislated requirements for a plaintiff to qualify as a representative plaintiff. A representative plaintiff must:
- fairly and adequately represents the interest of the class;
- produce a plan for the proceeding; and
- not have, on the common issues, a conflict of interest with the other class members.
In Western Canadian Shopping Centres Inc. v. Dutton, the Supreme Court of Canada identified additional factors to consider in determining the adequacy of a representative plaintiff:
The court may look to the motivation of the representative, the competence of the representative’s counsel, and the capacity of the representative to bear any costs that may be incurred by the representative in particular (as opposed to by counsel or by the class members generally). The proposed representative need not be “typical” of the class, nor the “best” possible representative. The court should be satisfied, however, that the proposed representative will vigorously and capably prosecute the interests of the class.
The statutory requirements and the factors identified in the jurisprudence have been interpreted with a degree of flexibility and applied in the context of the complexity of each class action.
Additional specific requirements exist depending on the jurisdiction where the class action is commenced. British Columbia requires that a representative plaintiff reside in the province; Ontario and Alberta do not have a residency requirement. British Columbia and Alberta have a provision allowing for the appointment of a non-class member as representative plaintiff if it is necessary to avoid injustice. This provision can be invoked, for example, in a case where the class members are under disability.
It is possible to have more than one representative plaintiff. Depending on the jurisdiction, it may even be essential in order to have at least one representative plaintiff with a cause of action against each of the defendants. The courts in Ontario have generally required this. The courts in British Columbia, on the other hand, seem less insistent that a representative plaintiff have a claim against each defendant in all cases as long as the representative plaintiff can adequately represent the class members for the purposes of the common issues. The position on this issue appears to be unsettled at this time in Alberta.
The identification of a representative plaintiff is generally not the biggest hurdle to the certification of a class action. However there are instances where courts have found the proposed representative plaintiff to be unsuitable. See e.g. 6323588 Canada Ltd. v. 709528 Ontario Ltd. (where the representative plaintiff was found to be engaged in a “shakedown” for an improper purpose);Fehringer v. Sun Media Corp. (where the court expressed concerns about the financial ability of the representative plaintiff to fund the prosecution of the class action); and Nixon v. Canada (Attorney General), 21 C.P.C. (5th) 269 (where the representative plaintiff had expressed strong antipathy towards a substantial majority of members in the proposed class). In another case, Carom v. Bre-X Minerals Ltd. (1999) 44 O.R. (3d) 173, the court determined that the proposed representative plaintiff had a conflict because he was put forward as representative plaintiff in two distinct but inter-related proceedings at the same time While it will likely take an exceptional case for a court to refuse to consider a suitable replacement altogether – and dismiss the certification motion outright – attacking the suitability of the representative plaintiff can be a meaningful line of attack when combined with other defences to certification. For this reason, counsel on both sides of the aisle should carefully consider whether the proposed representative plaintiff will appropriately represent the class and whether any improvements can be made to the proposed litigation plan at the certification stage.