In most class actions, class counsel represent class members in Court. One class member, the “representative plaintiff,” has important responsibilities with special duties to absent class members. Ontario’s class proceeding legislation requires that each class action have a representative plaintiff who:
(i) would fairly and adequately represent the interests of the class;
(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and
(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
In many cases, the adequacy of the representative plaintiff is not a focal point of the parties’ submissions at a certification motion. Sondhi v. Deloitte Management Services LP,[1] [“Sondhi”] was the rare case where the satisfaction of this precondition to certification was squarely in issue.
Sondhi is an employment class action initially brought by Shireen Sondhi. Ms. Sondhi is a former document reviewer who claimed she was improperly labeled an independent contractor (as opposed to an employee) by the Defendants, entities associated with the professional services giant Deloitte. At the initial certification motion, the Defendants successfully argued that Ms. Sondhi was an inadequate representative.[2] Since the other certification criteria were met, the motion was adjourned so that Ms. Sondhi could be replaced.[3]
Class Counsel substituted Ms. Sondhi with Tarrie Phillip, a lawyer whose employment experiences substantially mirrored those of Ms. Sondhi. Prior to agreeing to participate in the action, he read certain key documents related to the case, and materials focused on what his responsibilities would be as a representative plaintiff. He was clear in his view that the proposed class action was in the best interests of the class. Nonetheless, the Defendants mounted a full-court press against Mr. Phillip’s suitability as a representative plaintiff: they challenged, among other things, his attention to responsibilities, litigation plan, and financial resources, and argued that he had a disqualifying conflict of interest.
In assessing the Defendants’ arguments, Justice Perell made clear that a court should not be too stringent in evaluating whether a person is an appropriate representative plaintiff. He specifically cautioned against subjecting a proposed representative plaintiff to a “Class Action Aptitude Test.” He wrote:
“[c]lients are not expected to study their own cases; that’s what lawyers are supposed to do. Clients just need to believe that they may be entitled to legal redress for having suffered some harm.”
He went on to explicitly state that courts should be “skeptical” of a defendant’s attempt to disqualify a representative plaintiff based on their personality, as a defendant’s concerns are propelled by a desire to “devour” a class action:
“defendants are not genuinely interested in ensuring that class members are adequately represented; rather, defendants are genuinely interested in ensuring that there is no class action.”
However, there are characteristics of a representative plaintiff that will be disqualifying. For example, an individual cannot serve class members if they have a conflict of interest that impacts on the outcome of common issues and affects their ability to fairly and adequately represent the class.
The action was certified. Justice Perell rejected the Defendants’ novel argument that the certification motion ought to be dismissed for lack of interest on the part of putative class members before waiting to see if any of the putative Class Members opted-out. He made clear that the potential of many opt-outs is not a bar to certification, and that a representative plaintiff need not conduct a “referendum” to determine how many class members support the class action.
[1] 2018 ONSC 271.
[2] Sondhi v Deloitte, 2017 ONSC 2122
[3] The motions judge who ruled on the initial motion also ordered that the class definition be narrowed.