What is the test for a representative plaintiff in a class action?

Ontario, Canada


The following excerpt is from Brown v. Canadian Imperial Bank of Commerce, 2012 ONSC 2377 (CanLII):

In Coulson v. Citigroup, Perell J. made a trenchant observation about the representative plaintiff issue in the context of the realities of class action litigation. He observed at paras. 157 and 158: I confess that from reading many certification decisions, from presiding at several myself, and from considering the argument in the case at bar, that there is often a surreal quality to the debate about whether the proposed representative plaintiff satisfies the fifth criteria for certification because the debate on both sides focuses on the personality and character traits of the representative plaintiff while ignoring or not mentioning what everybody knows, which is that the real brain and the real muscle of the class action is class counsel. As is well known, in many class actions, it is class counsel who initiates the lawyer/client relationship and who selects the representative plaintiff. This is not to say that the representative plaintiff is not a genuine plaintiff, he or she must be. Nor is it to say that the representative plaintiff must not be competent, diligent, vigilant, and committed to giving proper instructions to advance the class action on behalf of the class. The representative plaintiff must have these attributes. It is simply to say that if the access to justice concerns of the Class Proceedings Act, 1992 are to be accomplished, the court should not subject the proposed representative plaintiff to the LSAT or some sort of Class Action Aptitude Test and should be skeptical of the defendant's arguments based on the personality of the candidate.

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