You Gotta Fight For Your Right… To Change Counsel: The Right of a Proposed Representative Plaintiff in a Class Action to Change Counsel

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,[i] 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”)[ii], 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 for changing counsel, to be applied when that change is challenged:[iii]

Once the Court’s jurisdiction is engaged, any review by the court of a decision as to choice of counsel must be directed to three factors: (1) Has the plaintiff chosen competent counsel? (2) Were there any improper considerations underlying the choice made by the plaintiff? (3) Is there prejudice to the class as a result of the choice?

The Court elaborated on the first point by noting the following considerations regarding the competence of counsel:[iv]

(1) the nature of the lawsuit; (2) the complexity of the litigation; (3) the fact that it was a class proceeding; (4) the experience of counsel as to subject matter and class actions; (5) the resources of counsel; (6) the stage of the proceedings at which the review occurs; and (7) any other considerations the court might deem to be appropriate.

In the case at bar, the Court accepted the competence of the Consortium on its experience, strength and resources to advance the action. Both firms in the Consortium were active in class proceedings in Alberta and counsel for the PRP himself was an active part of the proceedings while at the Former Law Firm, so his experience was also relevant. The Court noted that the test in Fantl is whether counsel are competent, not which firm is “best” (as would be the case in a carriage application). The Court said there was no basis for finding any prejudice to the class but rather the only real prejudice the Former Law Firm complained of related to potential economic prejudice against it– and this was not a relevant consideration.

The Court also relied on statements made by the Alberta Court of Queen’s Bench on a similar issue in the recent case of LC v Alberta (“LC”),[v] most notably that “[c]lass counsel needs to take instructions from the representative plaintiff… [a] dismissed lawyer cannot protest and insist that they remain counsel for the client despite the client’s clear decision to fire the lawyer.”[vi]

Conclusion

A proposed representative plaintiff in Alberta is indeed entitled to change counsel without leave of the Court, though such a move remains open to challenge under the tests laid out Fantl. This case affirms that it is the interests of the proposed class itself that drive procedural decisions in class proceedings. As Justice Graesser aptly stated in LC – “[c]lass proceedings belong to the class members, not the lawyers representing them.”[vii]

 

[i] 2021 ABQB 316 [Singh].

[ii] 2009 ONCA 377 [Fantl].

[iii] Fantl at para 49; cited at para 26 in Singh.

[iv] Fantl at para 60; cited at para 28 in Singh.

[v] 2021 ABQB 24 [LC].

[vi] LC at paras 32-33; cited at para 41 of Singh.

[vii] LC at para 42; cited at para 41 of Singh.

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