[co-author: Niall Fink – Articling Student]
In Smith v Lafarge Canada Inc, 2022 ABQB 289 [Smith], the Court of Queen’s Bench thought of a preliminary software arising out of a proposed class motion which concerned claims superior on behalf of the proposed class in addition to particular person claims particular to the proposed consultant plaintiff. The Court discovered that the person claims needs to be stayed pending certification and located an inherent battle in counsel for the proposed class additionally representing the proposed consultant plaintiff together with his particular person claims. The case demonstrates a robust presumption that class counsel shouldn’t act for plaintiffs in pursuing particular person claims associated to the category motion earlier than or after certification.
Background
Smith, a former worker of Lafarge Canada, introduced an motion on behalf of all present and former Lafarge staff, alleging that Lafarge underpaid quantities on account of staff below employment requirements and purposely omitted info from pay statements, depriving staff of the data required to determine whether or not their pay was correctly calculated. The plaintiff additionally superior a person declare that he had been terminated on the idea of his age, constituting discrimination on grounds prohibited below the Alberta Human Rights Act.
Before the certification software could possibly be heard, counsel for Lafarge utilized to sever the age discrimination declare from the category proceedings, keep its prosecution to keep away from overlapping claims, and have the worker’s lawyer of report faraway from both the discrimination declare or the category declare to keep away from a battle of curiosity.
Not Similar Enough to Join the Class Action
Key to the choice in Smith was whether or not the discrimination declare constituted a discrete declare, and never (because the plaintiff argued) a person difficulty that will be resolved within the bizarre course of a category motion.
Justice Eamon acknowledged that particular person points might come up at school proceedings. Conflicts of curiosity arising from particular person points are inherent at school proceedings, and could also be justified by the targets of the Class Proceedings Act in selling entry to justice, behaviour modification and judicial financial system.
However, Justice Eamon discovered that the plaintiff’s particular person declare for discrimination lacked ample connection to the frequent points of truth or regulation for the proposed class. Since the category included staff of numerous ages, age discrimination was not a typical truth amongst all class members. As for points of regulation, Justice Eamon discovered {that a} declare for age discrimination may solely give rise to discrete damages below the Alberta Human Rights Act, which lack any apparent hyperlink to the frequent points of systematic underpayment or psychological misery arising from wrongful termination. The age discrimination declare bore solely superficial connection to the category claims, and as such was discrete and severable.
Without dismissing the chance that in some circumstances it is likely to be fascinating for separate particular person claims to be tried inside a category motion, Justice Eamon indicated that becoming a member of separate claims inherently causes delay, expense and undue complication, opposite to the targets of the Class Proceedings Act—indicating a robust presumption in opposition to becoming a member of claims. In the absence of any compelling cause to affix the claims aside from price financial savings to the plaintiff, Justice Eamon ordered that the discrimination declare be stayed pending the result of the certification determination.
Not Different Enough to Avoid a Conflict
Justice Eamon discovered that the inherent nature of a category motion creates ample danger of a battle to bar counsel from joint illustration of each the proposed class and particular person claims.
Justice Eamon adopted the lead of B.C. and Ontario courts to find that class counsel assumes a solicitor-client relationship with members of a licensed class. The relationship is akin to a joint retainer, with the essential distinction that class counsel might not be capable to totally talk the potential for conflicts with all members of the category—significantly earlier than the category has been licensed, and the category members recognized.
In Singh v RBC Insurance Agency Ltd, 2020 ONSC 5368 [Singh], Ontario’s Superior Court lately eliminated a plaintiff’s lawyer from representing the identical consumer in each a big particular person motion for wrongful dismissal and a proposed class motion. While Singh and the circumstances it relied upon concerned identifiable conflicts between the person and the category, no clear battle was recognized within the Smith determination.
As Justice Eamon defined at paragraphs 62-63:
… Settlement negotiations are a big consideration, as a result of settlement discussions may happen early, even earlier than the listening to of the certification software (as s 4 of the CPA contemplates), and plenty of class actions finally settle following certification. A lawyer should advise and encourage a consumer to compromise or settle a dispute at any time when it’s potential to take action on an affordable foundation….
…Combining decision of separate claims with class claims could also be within the pursuits of the holder of the separate declare however not within the pursuits of these holding solely class claims. A lawyer representing each pursuits can’t moderately advise on one of the best settlement technique within the circumstances of this case.
On the idea of this potential for battle, Justice Eamon ordered that the plaintiff’s counsel of report be faraway from both the category motion or the discrimination declare, on the plaintiff’s alternative.
While class actions might result in price sharing and effectivity, Smith demonstrates {that a} plaintiff who decides to proceed with a category motion needs to be conscious {that a} totally different lawyer can be required for different claims in opposition to the identical defendant and because of this, consideration needs to be given as as to whether particular person claims needs to be superior in separate proceedings.