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An employment class action for alleged unpaid overtime recently hit a snag in Azar v Strada Crush Ltd, 2019 ONSC 4436 (CanLII) when things went south between the representative plaintiff and the class counsel. The class had been certified and the representative Plaintiff attempted to have class counsel removed while class counsel responded by alleging incompetency of the representative Plaintiff and seeking the appointment of a litigation guardian. This spurred a second cross motion from the Defendant seeking to have the representative Plaintiff removed.
Ultimately the Court found that class counsel should remain and new a representative Plaintiff should be found with the cooperation of the past representative Plaintiff.
The Court ultimately found the dispute was personal. The Court noted that the representative Plaintiff was competent as no medical evidence was provided to establish otherwise noting that “if weakness in math and a tendency to procrastinate were signs of a lack of capacity, half the bar and bench, including myself, might have to submit to guardianship. I say that, of course, with the greatest of respect”. The Court also rejected the idea to appoint a litigation guardian, who was another lawyer who swore interest in being a litigation guardian for the class action, finding that it would be a solely lawyer-driven process with no client to answer to.
To determine how to decide this personal dispute, the Court looked at the issue by determining “what is in the best interests of the class?”
On this point the judge stated that the core source of the issues was an underlying dispute between the class counsel and a colleague of his, Mr. Nunes, who introduced him to the representative Plaintiff. Mr. Nunes was attempting to have his lawyer, who is representing him against the class counsel in the business matter, replace the class counsel.
The Court determined this was not in the best interests of other class members. Rather, it reflected the representative plaintiff putting “his own interest first in choosing Mr. Nunes’ personal lawyer over the lawyer [class counsel] 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 allowed the Defendant’s motion, gave class counsel 60 days to find a new representative Plaintiff, and directed the representative Plaintiff to provide class counsel with any names and contact information he had of other class members.
As the representative Plaintiff has an obligation to be free of conflicts of interest with the class. Even though the matter had been certified the certification criteria, which should continue to be met, were not due to the dispute and the representative Plaintiff was removed.
This motion highlights the unique nature of the solicitor-client relationship in the class action context as well as the additional obligations on the parties in a class action. In a typical civil action, if an issue arose between the lawyer and client, the client has the freedom to choose their counsel and you would not see the opposing counsel participating in resolving that issue as was the case in this instance.
Monkhouse Law practices in all facets of workplace issues including disability and class actions. If you have any questions today about a potential workplace legal issue contact Monkhouse Law today for a free consultation.
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