Representative plaintiffs play essential role in class-action lawsuits

Representative plaintiffs in class-action lawsuits play a vital role as the name and face of a very public proceeding, says Toronto class action lawyer Margaret Waddell.

“To take on this role is a tremendous commitment,” says Waddell, partner with Waddell Phillips Professional Corporation.

“They take on all the responsibilities of any plaintiff in any litigation, including taking advice from their lawyers and instructing them on the major steps in the proceeding,” she says. 

Having someone in that role who knows the issues involved and demonstrates a genuine interest in the complaint is integral to the case, Waddell says.

First, the representative plaintiff’s engagement will always be recognized by the court as an important aspect of meeting the test under s. 5(1)(e) of the Class Proceedings Act, 1992, she says.

Courts want real plaintiffs

“But, as importantly, the courts like to see real plaintiffs with real damages,” says Waddell, who has led multiple class-action lawsuits. “Achieving access to justice for the plaintiff is a key factor in assessing whether the case ought to be certified.”

Second, the representative plaintiff can play an important role in any settlement negotiations, she says. “They instruct counsel and, in many cases, have strong views on what a fair and just settlement will be.”

That said, there are some cases where the recovery for each class member may be small.

There, the focus is more on seeking accountability from the defendant, and modifying their behaviour, Waddell says. In those cases, representative plaintiffs may play a less active role.

In most class action proceedings, however, these people are involved every step of the way, she says.

Before the claim is filed, they have to gather and present to class counsel all relevant documentation in their possession.

They can also help identify other class members, important witnesses, or individuals who may have other relevant documents, Waddell says. They must understand the nature of the claims being asserted and they review and approve the statement of claim for accuracy.

Before an action can proceed as a class proceeding, the court must grant an order certifying it as such.

In seeking certification, representatives are obliged to swear an affidavit that sets out the nature of their claim, confirming that they understand their role and are prepared to assume it, she says.

As part of the certification motion, class counsel will prepare a litigation plan on how they propose to deal with any certified common issues during the trial as well as any remaining litigation involving matters that are individual to each class member, Waddell says.

“The representative plaintiff should be familiar with the litigation plan and understand the steps to be undertaken,” she says.

The defendant will likely want to cross-examine them on the affidavit sworn to support the certification motion, Waddell says.

Special examiner’s office

These plaintiffs will have to prepare for this examination with class counsel, then attend a special examiner’s office to answer under oath any proper questions put to them by the defendant’s lawyer, she says.

When the motion for certification is argued in court, this individual is encouraged but not required to attend, Waddell says. If the class action is certified, they will assume additional duties, she says.

They must swear an affidavit listing all the relevant documents in their possession, power or control. They also often assist class counsel in reviewing the defendant’s documents, Waddell says.

Once the documents have been exchanged and reviewed, the parties conduct examinations for discovery. The lead plaintiff will be required to appear before an official examiner to answer any proper questions on common issues put to them by counsel for the defendant.

Throughout the case, this person should keep in touch with class counsel and remain engaged, she says. Class counsel will keep them informed of any settlement discussions.

“If an offer to settle is to be made on behalf of the class, then the representative plaintiff must understand the offer, and approve it before it is made,” Waddell says.

Typically, a mediation will be held prior to trial, with a view to reaching a settlement. The representative plaintiff should attend the mediation or at least keep in touch with class counsel as it proceeds, she says.

Common issues

If the class action does not settle, it will proceed to trial on the common issues, where the representative will usually be called as a witness, Waddell says.

If the trial on the common issues does not fully resolve the case, there may be a trial of matters individual to each class member. That may necessitate the representative providing more evidence to the court on these issues, she says.

There are often interlocutory motions, procedural issues and appeals from the decisions of the court as the case progresses, on which they are consulted.

“These are not insignificant responsibilities, regardless of whether the representative is also actively engaged in communications with the class members or other proactive steps in progressing the case,” Waddell says. “Taking on the role of representative plaintiff is not something that should be assumed lightly and without a good understanding of the commitment it entails.”