In the recent decision Azar v. Strada Crush Limited 2020 ONSC 549, Justice Edward Morgan decertified a class action he had previously certified, after infighting between the representative plaintiff and class counsel led to the disqualification of the representative plaintiff and no replacement representative plaintiff could be found.
This previously certified class action involved claims for unpaid wages by a group of employees who alleged that they were misclassified by their employer and that their employer deprived them of overtime and holiday pay.
Approximately one year after the certification motion, class counsel had a falling out with the representative plaintiff and the representative plaintiff moved to appoint new counsel as class counsel. Class counsel moved to have the representative plaintiff disqualified and for time to recruit a new representative plaintiff for the class. Justice Morgan's decision turned on the question of what was in the best interests of the class. In dismissing the representative plaintiff's motion to appoint new class counsel Justice Morgan noted:
"It seems to me that in seeking to terminate the retainer of class counsel who successfully took a difficult case through the certification stage, and in seeking instead to appoint the lawyer representing his friend who is in a business dispute with class counsel, the Plaintiff has not put forward the best interest of the class he represents. Rather, he has put his own interest first in choosing Mr. Nunes' personal lawyer over the lawyer who has a proven track record in this very case. If this had occurred at or just prior to certification, I would have had to conclude that the criteria stipulated in ss. 5(1)(e)(i) (fairly and adequately represent the class) and 5(1)(e)(ii) (no conflict of interest with the class) of the CPA have not been met."
The court ordered that class counsel had 60 days to move to replace the representative plaintiff with a new representative plaintiff, and if class counsel failed to do so, the defendant would be at liberty to move to decertify the class action.
When class counsel failed to find a new representative plaintiff, class counsel sought to reappoint the previous representative plaintiff. The defendants sought to dismiss this motion and brought its own motion to decertify the class action.
In denying the plaintiff's motion to reappoint the representative plaintiff, and granting the defendant's motion for decertification, Justice Morgan noted:
"What is clear is that Mr. Azar is not capable of instructing counsel, thinking through the approach to the litigation, and otherwise leading the class in this action. His changes of counsel are not a "bump in the road" as Mr. Juroviesky now attempts to characterize it, but rather are part of a pattern. Mr. Azar has shown a distinct tendency to focus on himself rather than on the interests of the class.
"It does not advance the class' case for a representative Plaintiff to vacillate between one set of inflammatory comments about counsel to another, all the while detracting attention from the actual claim against the Defendant. Mr. Azar's July affidavit and his September affidavit have together provided the kind of demonstration that any court would need to conclude that he is not the person the person to steer this claim on behalf of a class of 154 of his fellow employees and former employees."
There are many lessons to be learned from this case. Infighting between a representative plaintiff and a class counsel will not bode well for either party. In a class action, the best interests of the class are of the utmost importance. As Justice Morgan observed:
"Section 5(1)(e)(i) of the CPA requires for certification that "there is a representative plaintiff ... who ... would fairly and adequately represent the interests of the class." This is more than just a formal requirement. The representative Plaintiff plays a substantive role in moving a class action forward. As the Supreme Court has put it, "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": Western Canadian Shopping Centres v. Dutton 2001 2 SCC 46, para 41.
"... the major qualities of the representative plaintiff are independence and loyalty to the class and the major responsibility of the representative plaintiff is to ensure that class counsel does not improvidently settle the action sacrificing access to justice and behaviour modification to the entrepreneurial motivations that encouraged class counsel in the first place to take the enormous risks attendant on class action litigation."
The selection and appointment of a representative plaintiff is a critical step in a class action and should not be taken lightly. Irreconcilable differences between a representative plaintiff and class counsel may ultimately lead to the decertification of a class action which is exactly what happened in this case.
This article was originally published by the Laywer's Daily part of LexisNexis Canada Inc.