COURT FILE NO.: CV-19-00618043-00CP
DATE: 20200909
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KABIR SINGH, Plaintiff
AND:
RBC INSURANCE AGENCY LTD. and AVIVA GENERAL INSURANCE COMPANY, Defendants
BEFORE: Justice Glustein
COUNSEL: Andrew Monkhouse, for the plaintiff
Jeremy Devereux and Ted Brook, for the defendant RBC Insurance Agency Ltd.
Paul J. Martin and Pavel Sergeyev, for the defendant Aviva General Insurance Company
HEARD: August 13, 2020
REASONS FOR DECISION
Nature of motion and overview
[1] Monkhouse Law is counsel for the plaintiff, Kabir Singh (“Singh”) in:
(i) an individual wrongful dismissal action brought against the defendant RBC Insurance Agency Ltd. (“RBC IA”) and the defendant Aviva General Insurance Company (“Aviva General”) in the Superior Court at Toronto, Court File No. CV-19-00619149-0000 (the “Individual Action”), and
(ii) a proposed class action against the same defendants in Court File No. CV-19-00618043-00CP (the “Class Action”), seeking payment of vacation and statutory holiday pay which Singh claims was paid on commissioned employees’ base salary but not on their commissions. Singh claims the alleged underpayment of vacation and statutory holiday pay on behalf of all commissioned employees of RBC IA and Aviva General.
[2] RBC IA brings a motion to:
(i) remove Monkhouse Law as lawyers in either the Class Action or the Individual Action, on the basis of conflict of interest,
(ii) temporarily stay the Individual Action until the certification of the proposed class action, and
(iii) strike all, or portions of, the affidavits filed by Singh in response to the motion, from:
(a) Alexandra Monkhouse, co-counsel in the Class Action, on the basis that (1) as counsel, she cannot provide evidence as a witness and (2) the affidavit contains argument and opinion, and
(b) Singh, on the basis that his affidavit contains argument and opinion.
[3] Aviva General supports the motion but does not bring its own motion.
[4] By reasons dated June 25, 2020 (2020 ONSC 3907), I ordered that this conflict/stay motion be heard before the certification motion. I held, at para. 34:
Leaving the resolution of the conflict and stay issues until the certification hearing would not result in an expeditious determination of the issues. If the court were to find a conflict of interest of plaintiff’s counsel, then that issue ought to be determined before the certification hearing. Otherwise, counsel would be at risk of obtaining instructions from Singh in both his individual and representative capacities, which could lead to a conflict in the representation of the proposed class.
[5] The defendants advised the court that they will challenge Singh’s suitability as a representative plaintiff under s. 5(1) (e) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”) at the certification hearing, if he remains the proposed representative plaintiff for the class action and continues the Individual Action. The defendants submit that Singh cannot serve as a representative plaintiff in the Class Action if he is a plaintiff in the Individual Action, even if Monkhouse Law is removed as counsel in one of the actions.
[6] These Reasons do not address the s. 5(1)(e) issue. I consider only (i) whether Monkhouse Law is in a conflict of interest by seeking to act as counsel in both the Individual Action and the Class Action and (ii) whether the court should order a temporary stay of the Individual Action.
[7] For the reasons I set out below, I find that Monkhouse Law is in a conflict of interest in seeking to act for Singh in both the Individual Action and the Class Action.
[8] The Individual Action raises issues which are related to the Class Action, including:
(i) whether the vacation and statutory holiday pay was included in the commissions paid to Singh and the proposed class members, and
(ii) whether RBC IA and Aviva General were common employers or operated a joint venture or partnership.
[9] Both of these issues are critical components of the Class Action. The attempt by Singh to “exclude” the vacation or statutory holiday pay issue from the Individual Action does not alter the necessity of the court to address that issue in the Individual Action.
[10] Monkhouse Law owes a duty of commitment to Singh in the Individual Action, as well as a sui generis duty to the proposed class members. Monkhouse Law cannot treat Singh in his Individual Action as its only client (as required under its duty of commitment) when Monkhouse Law owes the same duty of commitment to Singh as representative plaintiff for the proposed class members in the Class Action.
[11] Consequently, the Individual Action can reasonably be expected to compromise the ability of Monkhouse Law to provide unrestricted representation to the proposed class members.
[12] I also order a temporary stay of the Individual Action until the certification motion is heard and decided by this court, since there are overlapping issues and, as such, there is a risk of inconsistent judgments. A brief stay will not result in injustice to Singh since he chose to act as representative plaintiff in the Class Action to have the vacation and statutory holiday pay and joint employer issues decided.
[13] Given my conclusions, I do not address the issue of striking all or parts of the affidavits. Even if I accepted all of the statements in those affidavits, it would not alter the conflict or stay issues, which depend solely on the pleadings in the two actions.
Nature of the actions
1. The Class Action
[14] In another earlier decision in Singh v. RBC Insurance Agency Ltd., 2020 ONSC 182, I briefly reviewed the nature of the Class Action, which was commenced by Singh against RBC IA and Aviva General on April 12, 2019. I restate the following paragraphs from those Reasons as they are relevant to the present motion:
5 I review the nature of the action based on the pleadings and the certification affidavit evidence filed by the plaintiff. I make no factual findings.
6 The proposed class action is brought on behalf of all commissioned employees who worked as Property and Casualty insurance advisors (“Advisors”) for (i) RBC General Insurance Company (“RBC General”), a predecessor to Aviva General and (ii) RBC IA. The proposed class members were allegedly paid vacation pay and statutory holiday pay on their base salary rather than their total wages.
7 Singh worked for RBC General from January 19, 2016 until June 30, 2016, and subsequently for RBC IA, after the Acquisition (as defined below) until the termination of his employment in April 2019.
9 In January 2016 Aviva Canada Inc. announced the acquisition of RBC General and a 15-year strategic partnership with RBC Insurance (the brand name for the insurance operating entities of Royal Bank of Canada) (the “Acquisition”). The Acquisition was effective July 1, 2016, and the RBC General name was changed to Aviva General.
10 Since the Acquisition, Aviva General has operated as a licensed insurance company in Ontario and elsewhere in Canada that offers insurance products through licensed insurance agents.
11 Pursuant to the Acquisition, the insurance sales and distribution business of RBC General was transferred to the newly-created RBC IA. Aviva General acquired only the insurance underwriting and claims handling business of RBC General.
12 Consequently, employees such as Singh who had been employed in the sales and distribution business of RBC General became employees of RBC IA.
13 RBC IA is a licensed corporate insurance agency in Ontario and elsewhere in Canada. RBC IA is not an insurance company and does not offer its own insurance products. It offers insurance products of Aviva General to members of the public.
14 Aviva General alleges that (i) it has an arm’s length commercial relationship with RBC IA; and (ii) RBC IA is neither controlled by nor affiliated with Aviva General.
15 Singh alleges that Aviva General is liable for employment standards violations to commissioned Advisors both as (i) successor of RBC General and as (ii) a common employer with RBC IA following the Acquisition. Singh relies on the following allegations:
(i) In May 2016, all insurance advisors received a flyer outlining the changes that would occur as a result of the Acquisition. The flyer provides that “at close” “P&C [Property and Casualty] Advisors become employees of RBC Insurance Agency Ltd. Their Licence is sponsored by Aviva General Insurance Company”;
(ii) The flyer referred to the “innovative approach for future growth” of both “RBC Insurance and Aviva Canada”, with “Home & Auto policies underwritten by [Aviva General]” and “Underwriting, Billing, Claims and Product moved to Aviva”;
(iii) The flyer indicated that the telephone numbers of the former RBC General “Underwriting, Billing, Claims and Product employees (i.e. Aviva employees at close)” would not change; and
(iii) Following the Acquisition, Aviva General representatives attended meetings involving Advisors in respect of issues regarding their conduct in the sale and marketing of Aviva products. In particular, representatives of both RBC IA and Aviva General investigated Singh and met with him for this purpose.
16 In the alternative, Singh relies on the above pleadings and documents to claim that Aviva General and RBC IA formed a partnership or joint venture following the Acquisition and that they are jointly liable for employment standards violations.
[15] Singh relies on the compensation plan for members of the proposed class, which provides that:
All Variable Compensation components of the Plan have been established at a level that includes both Vacation Pay and Statutory Holiday Pay.
[16] Singh alleges that, under the compensation plan, he and the members of the proposed class ought to have been paid separate vacation and statutory holiday pay based on their commission income.
[17] The defendants submit that vacation and statutory holiday pay were included in the commissions paid, so that all amounts owed under the compensation plan have been paid.
[18] Further, Singh alleges that RBC IA and Aviva General are jointly liable for any amounts owing to them and to the members of the proposed class on the basis that they are common employers or otherwise engaged in a joint venture or partnership.[^1]
[19] Singh’s lawyers in the Class Action from the outset have been Monkhouse Law.
2. The Individual Action
[20] On May 1, 2019, about two weeks after commencing the Class Action, Singh commenced his Individual Action against RBC IA and Aviva General.
[21] In the Individual Action, Singh seeks damages of $1,063,656.62 plus interest and costs, which includes a claim for 12 months’ compensation in lieu of notice. The pleading raises allegations including wrongful dismissal, bad faith conduct by the defendants, breaches of human rights on the basis of religion, and intentional infliction of mental distress which Singh alleges have caused him “permanent and serious recognized medical injuries”. The pleading includes a claim for $100,000 in “punitive, aggravated, Bhasin and/or moral damages”, and a claim that Singh be given the option to require RBC IA to reinstate him to his prior position.
[22] Singh pleads that his Individual Action is “exclusive of all vacation and statutory pay issues arising out of the Plaintiff’s employment with the Defendants”.
[23] Singh pleads that RBC and Aviva General are common employers.[^2]
[24] Singh’s lawyers in the Individual Action from the outset have been Monkhouse Law.
The conflict issue
[25] Neither defendants’ counsel nor the court suggest that the conflict issues arising in this matter reflect on the competence or professionalism of Monkhouse Law. Rather, the conflict issues only arise due to the inability of Monkhouse Law to zealously represent both the interests of the class members and those of Singh, concurrently, if acting as counsel on both the Class Action and the Individual Action.
[26] Further, RBC IA does not seek to necessarily remove Monkhouse Law as counsel in the Class Action. RBC IA asks only that Monkhouse Law be removed as counsel in either the Individual Action or the Class Action, on the basis that Monkhouse Law cannot act in both actions due to the conflict.
[27] In this analysis, I:
(i) address the general principles governing the role of counsel to zealously represent the interests of their clients, and the conflict that can arise if counsel is unable to do so,
(ii) consider the class action case law that has addressed whether a law firm is in conflict because of its proposed representation of a plaintiff as representative plaintiff and its role as counsel for the same or different plaintiffs in a related individual action, and
(iii) apply the above principles to the present case.
1. The applicable law on the role of counsel to zealously represent the interests of their clients and the conflict that can arise if counsel is unable to do so
[28] This motion does not raise the typical conflict situation arising when a former or current client objects to its counsel acting against it. Those cases involve the risk of the use of confidential information against a client (MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235), or a “bright line” test that prohibits counsel from representing “one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other” (R. v. Neil, [2002] 3 S.C.R. 631, 2002 SCC 70 at para. 29).
[29] In the present case, the conflict arises out of a lawyer’s duty to zealously represent their client, also referred to as a lawyer’s “duty of commitment”. In Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, the court set out the key principles governing a lawyer’s duty of commitment (quoted verbatim), at para. 83:
(i) “The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system”: McClure, [2001 SCC 14] at para. 2. These words, written in the context of solicitor-client privilege, are equally apt to describe the centrality to the administration of justice of the lawyer’s duty of commitment to the client’s cause;
(ii) A client must be able to place “unrestricted and unbounded confidence” in his or her lawyer; that confidence which is at the core of the solicitor-client relationship is a part of the legal system itself, not merely ancillary to it: Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, at para. 45, citing with approval, Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.); McClure; and
(iii) The lawyer’s duty of commitment to the client’s cause, along with the protection of the client’s confidences, is central to the lawyer’s role in the administration of justice.
[30] The law of conflicts prohibits counsel from acting for a client when there is a reasonable concern that counsel cannot zealously represent the client. In such a case, the concern is that a lawyer may “soft peddle” a client’s representation “in order to serve his own interests, those of another client, or those of a third person”: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 23.
[31] With respect to a current client, the lawyer cannot “place himself in a situation that jeopardizes effective representation”: McKercher, at para. 23.
[32] In order for a lawyer to provide effective representation, the lawyer must “refrain ‘from being in a position where it will be systematically unclear whether he performed his fiduciary duty to act in what he perceived to be the best interests’ of his client”: McKercher, at para. 25, since “an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client”: McKercher, at para. 25.
[33] Effective representation may be threatened if the lawyer is tempted to prefer other interests over those of the client: the lawyer’s own interests, those of a current client, of a former client, or of a third person: McKercher, at para. 26.
[34] The duty of commitment is closely related to the duty to avoid conflicting interests. The lawyer must avoid conflicting interests so that he can remain committed to the client. Together, these duties ensure that a divided loyalty does not cause the lawyer to “soft peddle” representation of a client out of concern for another client: McKercher, at para. 43.
[35] The courts in their exercise of supervisory jurisdiction over the administration of justice have inherent jurisdiction to remove law firms from pending litigation. Disqualification may be required to avoid the risk of improper use of confidential information, to avoid the risk of impaired representation, or to maintain the repute of the administration of justice: McKercher, at para. 61.
[36] It is this context that the courts in class action matters have considered conflict issues arising when counsel seeks to represent both a proposed class in the class action and a client in a related individual action. Those conflicts arise even when the representative plaintiff is not the plaintiff in the related individual action. I now review the class action case law which has considered this conflict issue.
2. Class action case law which has considered the conflict issue arising from the duty of commitment when counsel seeks to represent the proposed class in a class action and a client in a related individual action
[37] I review the case law which has considered (i) the nature of the lawyer-client relationship between a lawyer and both the representative plaintiff and proposed class members, and (ii) the conflict arising when a lawyer represents a client in a related individual action as well as in a class action.
(i) The nature of the relationship between a lawyer and both the representative plaintiff and proposed class members
[38] In a proposed class action, it is not disputed that class counsel is in a lawyer-client relationship with the proposed representative plaintiff throughout the action. The representative plaintiff must therefore be able to place “unrestricted and unbounded confidence” in class counsel.
[39] When a class action is certified, class counsel is in a lawyer-client relationship with both the representative plaintiff and the class members: Berry v. Pulley, 2011 ONSC 1378, 106 O.R. (3d) 123, at para. 79. The class members, like the representative plaintiff, must therefore be able to place “unrestricted and unbounded confidence” in class counsel.
[40] Prior to certification, there is a sui generis relationship between a proposed class member and counsel based on a potential lawyer and client relationship, imposing “at least some responsibilities…on the lawyer acting for the representative plaintiff that are owed to the potential class members”: Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC), 2008 60 C.P.C. (6th) 326 (Ont. S.C.), at para. 78, aff’d 2008 CanLII 63563 (ON SCDC), 244 O.A.C. 183 (Div. Ct.), aff’d 2009 ONCA 377; Heron v. Guidant Corp., [2007] O.J. No. 3823 (S.C.), at para. 10, leave to appeal refused 232 O.A.C. 36 (Div. Ct.).
[41] Consequently, the court has inherent jurisdiction to protect the interests of prospective class members from the outset of the litigation. Perell J. held in Fantl, at para. 59:
In my opinion, the Court has jurisdiction from the outset and throughout the proceedings to fully govern the procedure including the authority to supervise the relationships among: (a) lawyer and representative plaintiff; (b) lawyer and proposed class; (c) lawyer and certified class; (d) representative plaintiff and proposed class; (e) representative plaintiff and certified class, and, if necessary, the Court has the authority to replace the solicitor of record or even a representative plaintiff with another person who will bring the action on behalf of a proposed or a certified class of co-claimants.
[42] I further adopt the following principles from Berry:
(i) The relationship of class counsel with a representative plaintiff and the class members is necessarily a joint retainer, with all the potential conflicts of interest amongst joint clients that can arise in any joint retainer: at para. 79;
(ii) In addition, in all class actions, class counsel has an inherent conflict of interest with the representative plaintiff and the class members because of its financial interest in the class members’ causes of action: at para. 80;
(iii) These potential conflicts require class counsel to be “conscious of the conflicts that may arise between the representative plaintiff and other class members, or between his or her own interests and the interests of the class members”: at para. 83; and
(iv) The ultimate responsibility for ensuring that the interests of the class members are not subordinated to the interests of either the representative plaintiff or class counsel rests with the court: at para. 83.
[43] Applied to the sui generis relationship between class counsel and proposed class members, the above principles require counsel to be conscious of a potential conflict of interest in seeking to represent a proposed class. The court retains its inherent jurisdiction to remove counsel to ensure that the lawyer complies with the sui generis duty of commitment owed to proposed class members.
(ii) Conflict arising when counsel seeks to represent the proposed class and a client in a related individual action
[44] Courts have addressed conflict arising when counsel seeks to represent the proposed class and a client in a related individual action. I review the cases below.
[45] The conflict can arise even if the proposed representative plaintiff is not the client in the individual action. The court reviews the two actions to determine if counsel has the conflict—the issue is not whether the representative plaintiff has a conflict (which is a factor for certification under s. 5(1)(e) of the CPA).
[46] Consequently, the conflict issue has arisen when (i) counsel sought to act for the same plaintiff in both an individual and representative capacity for the same type of claim, (ii) counsel sought to act for other plaintiffs in opt-out individual actions and concurrently act as counsel for a different representative plaintiff in a class action arising out of the same type of claim, and (iii) counsel sought to act for the same plaintiff in both an individual and representative capacity for a related type of claim.
[47] In each of the cases, the concern of the court related to the duty of commitment: i.e. the ability of counsel to zealously advocate for the class members given the related individual actions for which counsel also sought to be retained as counsel.
[48] In Logan v. Canada (Minister of Health), [2002] O.J. No. 522 (S.C.), Winkler J. (as he then was) addressed scheduling issues arising from a proposed motion to add a representative plaintiff (Ms. Bulloch-MacIntosh) to a class action relating to allegedly defective jaw implants.
[49] Ms. Bulloch-MacIntosh had an individual action against the same (and additional) defendants “brought on substantially the same basis as the class proceeding”: at para. 1, in which she was also represented by the same counsel who acted for the class.
[50] The court was only dealing with scheduling issues. However, Winkler J. raised concerns about counsel acting for the same plaintiff in both an individual action, and as representative plaintiff in a class action, when the individual claim was substantially the same as in the class action.[^3] He stated that class counsel could not perform its obligations to the class in such circumstances, at para. 6:
As well, there is the potential for a conflict of interest for Bulloch-MacIntosh and her counsel, who are also class counsel, if both actions are permitted to continue. Each will have obligations in the context of their respective roles as representative plaintiff and class counsel in the class proceeding. Those obligations cannot be performed where an individual action is being maintained by the representative plaintiff at the same time as the class proceeding is being prosecuted. [Emphasis added.]
[51] Without expressly stating the basis for the conflict, the comments of Winkler J. that the “obligations” of counsel “cannot be performed” are consistent with the inability of counsel to comply with its duty of commitment when acting in both capacities.
[52] In Vaeth v. North American Palladium Ltd., 2016 ONSC 5015, the same counsel (Morganti Legal) sought to act for (i) a representative plaintiff (Johnson) in a proposed class action brought by investors against the corporate and personal defendants as well as the auditor (the “Johnson Class Action”), and (ii) a group of proposed “opt-out” plaintiffs[^4] (the “Vaeth Plaintiffs”) in an individual action brought against the same defendants (the “Vaeth Action”). Both actions elated to the same alleged securities misrepresentations.
[53] The defendants in both actions brought a motion to stay both actions temporarily. The stay was sought based on the alleged conflict of Morganti Legal to act in both matters, such that a stay would be necessary “for the purpose of effecting a change of lawyer in one or the other of the actions”: at paras. 1-4.
[54] Perell J. held, at para. 66, that “Morganti Legal has a conflict of interest with this joint retainer and may only act for one or the other of these clients. The clients have conflicting interests and the law firm has conflicts of interest in purporting to provide independent legal advice and professional services to both Mr. Johnson and the Vaeth Plaintiffs”.
[55] Perell J. based his finding of conflict of interest on the following:
(i) A conflict could arise if there were limited funds available: at paras. 66-69;
(ii) Even “[i]f there was enough money for all”, there could be a conflict since “the Vaeth Plaintiffs, given their significant individual losses, are more incented to demand a less compromising settlement than Mr. Johnson who given the entrepreneurial model of Ontario’s class action regime is, practically speaking, in partnership with Morganti Legal”: at para. 73; and
(iii) “There is also the problem for Morganti Legal of the possibility of conflicting instructions about the prosecution of the claims against the Defendants”: at para. 75.
[56] Perell J. stayed the class action until the earlier of (i) the discontinuance of the individual action, (ii) the delivery of a notice of change of lawyer in the individual action, or (iii) the delivery of a notice of change of lawyer in the class action: at para. 4.
[57] In Persaud v. Talon International Inc., 2018 ONSC 5377, counsel (Levine, Sherkin, Boussidan) acted for the representative plaintiff Persaud in a proposed class action seeking the rescission of an agreement to purchase a condominium and the return of the deposits paid. As in Vaeth, the same counsel acted for other individual plaintiffs for the same claim, in 16 separate actions: at paras. 1 and 164.[^5]
[58] Perell J. conditionally approved certification. He held that Persaud could not act as proposed representative plaintiff unless Levine, Sherkin, Boussidan removed itself as counsel of record in the class action within 60 days: at paras. 4-6, 182-85.[^6]
[59] Perell J. held that Levine, Sherkin, Boussidan was in a conflict of interest. Perell J. relied on the duty of commitment, finding that the proposed concurrent representation was not “waivable” since the class members would not receive “unconflicted representation”: at paras. 172, 174. Perell J. held that “[i]t is not for the court to waive those conflicts and indeed the conflicts are irreconcilable”: at para. 174.
[60] Perell J held that there were numerous conflicts of interest that arose from the proposed concurrent retainers. He stated, at para. 175 (footnote omitted):
In the context of class proceedings, there are three types of conflict of interest that require examination: (1) conflicts of interest arising from a lawyer’s direct financial interest in the class proceedings, which are an inherent conflict allowed by the entrepreneurial model of the class proceedings legislation; (2) conflicts arising from a divergence of interest between the representative plaintiff and class members; and (3) conflicts arising from the lawyer’s divided loyalties arising outside of the class proceeding. In the immediate case, all three types of conflict of interest would be present should Levine, Sherkin, and Boussidan simultaneous [sic] act for the plaintiffs in the sixteen actions and for the Class Members.
[61] Perell J. noted that “the Class Members and the plaintiffs in the sixteen actions may differ on tactics and strategy”: at para. 181.
[62] In Whitehouse v. BDO Canada LLP, 2020 ONSC 144, 149 O.R. (3d) 85, the representative plaintiffs (including Whitehouse and the Couchs) brought a claim against the defendant auditor BDO, asserting that it had conducted a negligent audit which prevented the investors from discovering fraud by the audited corporation. Perell J. refused certification of the proposed class action.
[63] With respect to the representative plaintiff criteria, Perell J. accepted the defendant’s submission that proposed class counsel (Adair Goldblatt Bieber LLP) had a “disqualifying conflict of interest” since they also acted for the proposed representative plaintiffs in a related action against the “Media House Defendants”. That action was related to the class action since Whitehouse alleged deceit and forgeries by the Media House Defendants that deceived BDO: at paras. 84-86, and 164.
[64] As in Persaud, Perell J. referred to the three types of conflict of interest that could arise for class counsel: at para. 161. He held that by acting for Whitehouse and the Couchs as representative plaintiffs and for Whitehouse and the Couchs in the related Media House action, counsel had “conflicts of interest of the kind I discussed in [Vaeth] and [Persaud]”: at para. 164.
[65] Perell J. held that “these conflicts could be avoided by replacing Mr. Whitehouse and the Couchs as representative plaintiffs and by a change of lawyers for the plaintiffs in the Media House action”: at para. 164.[^7]
[66] Perell J.’s conclusion that “a change of lawyers [was required] for the plaintiffs in the Media House action” was consistent with the approach taken in all of the above cases, and affirms the duty of commitment when class counsel seeks to act on individual actions on the same or related matters, regardless of whether the representative plaintiff is also the plaintiff in the related action.
3. Application of the law to the facts of this case
[67] Singh seeks to distinguish all of the above class action conflict case law on the basis that in the Individual Action, Singh purports to exclude a claim for vacation and statutory holiday pay arising out of his commissions. In the Individual Action, Singh pleads that his wrongful dismissal claim is “exclusive of all vacation and statutory pay issues arising out of the Plaintiff’s employment with the Defendants”.
[68] On that basis, Singh submits that there is no conflict. Singh submits that the “wrongful dismissal” Individual Action is “unrelated” to the “vacation and statutory pay” Class Action. Singh analogizes the Individual Action to a motor vehicle claim against the same defendants, and submits that no conflict could arise because the matters are unrelated, so there is no risk of conflicting instructions or divided loyalty as counsel.
[69] I do not agree.
[70] The two actions are related. In both actions, the issues of (i) common employer and (ii) appropriate determination of vacation and statutory holiday pay will need to be determined by the court. Monkhouse Law cannot fulfil its duty of commitment. Monkhouse Law cannot treat Singh (in the Individual Action) and the proposed class members (in the Class Action) as if Monkhouse Law “knows but one person in all the world, and that person is his client”: McKercher, at para. 25.
[71] Conflict issues also arise because of the inability of Monkhouse Law to provide unrestricted representation to Singh on settlement of the Individual Action while still acting for the proposed class as if Monkhouse Law knows but one person in the world.
[72] I address each of these conflicts below.
[73] Finally, Singh also seeks to rely on the issues of standing, estoppel, and delay to dismiss the conflict motion, even if a conflict is held to arise. I do not agree that those defences are well-founded, and I address those defences to the conflict motion as well.
(i) The common employer issue
[74] Singh claims damages against both RBC IA and Aviva General as a common employer. The pleaded facts are identical in both actions.
[75] In his Individual Action, Singh seeks over $1 million in damages for wrongful dismissal, including damages for notice, bad faith conduct by the defendants, breaches of human rights on the basis of religion, and intentional infliction of mental distress which Singh alleges have caused him “permanent and serious recognized medical injuries”. He seeks punitive, aggravated, and moral damages and seeks the option to require RBC IA to reinstate him to his prior position.
[76] Consequently, the issue of who is Singh’s employer is pivotal in the Individual Action.
[77] Similarly, in the Class Action, Singh seeks damages for the class against both RBC IA and Aviva General as a common employer. While Singh acknowledges that his claim for vacation and statutory holiday pay on commissions “could be worth only a few hundred dollars”, the value of a claim on behalf of the class is significant. The issue of who pays those damages is pivotal.
[78] The conflict arises because Monkhouse Law must vigorously pursue Singh’s best interests in the Individual Action. Singh may not wish to pursue Aviva General in the Individual Action due to risks of costs if unsuccessful, and it may be in his interests to settle only with RBC IA (who acknowledges being his employer) to promote recovery without facing cost consequences.
[79] Aviva General also raises limitation period issues which may affect how Monkhouse Law would advise Singh in the Individual Action. When seeking damages of over $1 million, the risk of pursuing Aviva General raises significant strategic decisions which would require unrestricted attention under Monkhouse Law’s duty of commitment. In the Individual Action, Monkhouse Law is required to treat Singh as if he were their only client.
[80] If it was in Singh’s best interests not to pursue Aviva General, Monkhouse Law must give that advice, which would prejudice the interests of class members who might seek to continue the common employer claim against Aviva General.
(ii) The issue of whether commissions paid included vacation and statutory holiday pay
[81] I do not agree that the “exclusion” of the vacation and statutory holiday pay issue in the Individual Action creates unrelated claims.
[82] Vacation and statutory holiday pay is not owed during the common law notice period, but is owed during the statutory notice period. In Cronk v. Canadian General Insurance (1995), 1995 CanLII 814 (ON CA), 25 O.R. (3d) 505 (C.A.), the court held, at p. 515:
The respondent was entitled to receive vacation pay upon the termination of her employment. The statutory benefit must obviously be calculated in accordance with the provisions of the statute and does not apply to the period of notice to which the respondent is entitled at common law if that period exceeds the period to which the statutory benefit applies.
[83] Consequently, in the Individual Action, the court would have to determine which party’s interpretation of compensation is correct. The defendants submit that the commission payment already includes vacation and statutory holiday pay. Consequently, under the defendants’ interpretation, if Singh earned $1,000 per month in commissions, and if vacation and statutory holiday pay were included and were calculated at $80 of that amount, then for the common law notice period, $80 would need to be deducted from the compensation awarded.[^8] If Singh’s interpretation was accepted and the $1,000 did not include vacation or statutory holiday pay, he would be entitled to the full $1,000 per month during the common law notice period, and an additional amount during the statutory period.
[84] The risk of a conflict arising from the duty of commitment on the vacation and statutory holiday pay issue is particularly compelling given the damages sought by Singh in the Individual Action. Singh seeks significant damages of over $1 million in the wrongful dismissal action. However, as Singh acknowledges in his affidavit, the vacation and statutory holiday pay issue “could be worth only a few hundred dollars” for him.
[85] On that basis, Monkhouse Law’s duty of commitment must include potentially advising Singh not to pursue the extremely minor issue of vacation and statutory holiday pay in the Individual Action, and releasing the defendants of all claims related to his employment, if Singh is satisfied with a significant settlement offer based on his wrongful dismissal.
[86] Conversely, Monkhouse Law could not fulfil its duty of commitment to the class members by having the representative plaintiff abandon his rights on the only issue at stake in the Class Action.
[87] It is Monkhouse Law’s duty to maximize settlement on behalf of Singh as an individual client, and if that duty includes a release of all common employer or vacation and statutory holiday pay claims, it is Monkhouse Law’s duty to follow that path, which puts it into conflict with the interests of the class members.
[88] As in Vaeth, at para. 73, counsel would have a conflict towards class members since counsel would have to be committed to Singh in the Individual Action, who, given his “significant individual losses”, would be “more incented to demand a less compromising settlement”, as compared to a representative plaintiff “who given the entrepreneurial model of Ontario’s class action regime is, practically speaking, in partnership with” Monkhouse Law.
(iii) Other conflict issues arising with respect to settlement
[89] Any settlement of the Individual Action would almost certainly require a full and final release of all claims arising out of Singh’s employment. A claim for vacation or statutory holiday pay would fall within the claim for damages for earnings during the notice period in the Individual Action, and the liability of the defendants as a common employer would also need to be addressed. The duty of commitment which would require Monkhouse Law advising Singh to sign such a release would conflict with its duty of commitment to the class members.
[90] Also, Monkhouse Law has different financial interests in each action. Given Monkhouse Law’s duty of commitment, Singh should not be required to have any concern that any advice in his Individual Action would be affected by Monkhouse Law’s financial interests in the Class Action. However, that situation arises when counsel proposes to act in a class action[^9] and as counsel for an individual plaintiff in a related action (as in Vaeth and Persaud), or even in a separate related action against different defendants (as in Whitehouse).
[91] This is not a situation akin to a motor vehicle accident claim, when it might be unethical if the defendants[^10] attempted to link settlement to a withdrawal from the class action (an example relied upon by Monkhouse Law). Singh has a significant wrongful dismissal claim, which puts into play his two key issues in the class action — the interpretation of the proper method to calculate vacation and statutory holiday pay, and the issue of common employer.
[92] Monkhouse Law seeks to rely on the requirement for court approval of a class action settlement to protect against the conflict affecting the interests of the class members. However, the conflict arises because Monkhouse Law must act in the best interests of Singh in the Individual Action. It cannot prefer the interests of class members. Monkhouse Law cannot sublimate Singh’s personal interests to those of the class members.
[93] In the present case, the same concerns exist as in Vaeth and in Persaud. In particular, there is a significant risk that, as counsel, advice to Singh as an individual plaintiff and as a representative plaintiff “may differ on tactics and strategy” or lead to “conflicting instructions”: Persaud, at para. 181; Vaeth, at para. 75. As I discuss above, it may well be in Singh’s interest (i) not to pursue a common employer or vacation or statutory holiday pay claim in order to obtain a reasonable settlement, and (ii) to release such claims upon a successful settlement in the Individual Action.
[94] The concern over conflicting instructions is reflected by Ms. Monkhouse’s statement in her affidavit that if Singh were to be offered a “sweetheart deal” by the defendants in the Individual Action, then Ms. Monkhouse “would not be willing to participate in same” if that offer was prejudicial to the interests of the class members. Ms. Monkhouse further states that such a “sweetheart deal” would not be possible because of the requirement for court approval of the settlement of a class action.
[95] However, Ms. Monkhouse’s statement is an acknowledgement that there could be a settlement of the Individual Action that is in Singh’s interest but not in the interests of the class members, as I discuss above. Any decision by Monkhouse Law which prefers the interests of class members over Singh’s interest in the Individual Action is contrary to her duty of commitment to Singh —Ms. Monkhouse is effectively stating that she would not follow Singh’s instructions if he wished to settle his Individual Action. If so, that would be a violation of Monkhouse Law’s duty of commitment to Singh in the Individual Action.
[96] This statement by Ms. Monkhouse demonstrates the conflict which is not waivable in the present case. Ms. Monkhouse would be ethically required to pursue such a settlement regardless of the effect it would have on the Class Action.
[97] Monkhouse Law cannot prefer the interests of another client, particularly where counsel has a large financial incentive to pursue one of the actions, i.e. the Class Action. Counsel must be removed on at least one of the actions so that counsel can fulfil its ethical obligations.
[98] Consequently, I follow the decisions in Logan, Vaeth, Persaud, and Whitehouse, and find that Monkhouse Law must be removed as counsel in either the Class Action or the Individual Action. The conflicts of interest raised by the same law firm acting as class counsel and as counsel in a related individual action are irreconcilable and cannot be waived. Neither Singh in the Individual Action nor the proposed class members can place “unrestricted and unbounded confidence” in Monkhouse Law as counsel, as is required by the duty of commitment.
(iv) Other defences to the conflict motion raised by Singh
[99] Singh raises the following defences to the conflict motion. He submits:
(i) The defendants do not have standing to bring the conflict motion;
(ii) The defendants are estopped from bringing the conflict motion as a result of a letter from RBC IA’s counsel to Singh’s counsel dated October 21, 2019 (the “October 2019 Letter”); and
(iii) In any event, the defendants have delayed too long in bringing the motion.
[100] I address each of these submissions below.
1. Standing
[101] Singh submits that the defendants cannot raise the conflict issue since they are not the party affected by the conflict. Singh relies on the decision of Master Dash in Condoluci v. Martins (2004), 2004 CanLII 35132 (ON SC), 72 O.R. (3d) 428 (S.C), at para. 44, in which the court held that “if the disqualification is based on a solicitor acting against a former client or on the possibility that confidential information may be used against the interest of a former client, standing to bring such motion should be restricted to the former client save in the most exceptional of circumstances”.
[102] However, the decision in Condoluci does not apply in the present case. No former client is seeking to remove a lawyer for conflict. Instead, the court is asked to exercise its inherent jurisdiction to remove a law firm from pending litigation.
[103] The disqualification is sought to “avoid the risk of impaired representation … or to maintain the repute of the administration of justice”: McKercher, at para. 61.
[104] The court has “inherent jurisdiction” to address conflicts arising from a duty of commitment, as set out in McKercher, at para. 61, and in Fantl, at paras. 58-59.
[105] Singh’s position is also not consistent with the class action case law which has addressed such conflicts. In Logan, Persaud, Vaeth, and Whitehouse, it was the defendants or the court who raised the issue. This is the logical result, as the conflict arises from representing a client as a representative plaintiff and that same client (or other clients) in an identical or related individual action. There is no MacDonald Estate or Neil issue with a former or current client seeking to remove the lawyer for the adverse party. In a class action, the defendants or the court can properly raise any conflict which the court should consider in supervising the class action process to protect the interests of the class members (or proposed class members).
[106] The ability of the defendants to address conflict issues arising from duty of commitment, in order to consider the interests of the proposed class, is similar to the approach taken by the court in funding approval motions. Defendants can challenge a funding agreement if that agreement does not properly protect the interests of the proposed class. While frivolous objections to funding may be viewed as a veiled attempt to stop certification, legitimate objections to the autonomy of the plaintiff have been raised by defendants and accepted by the courts. In Houle v, St. Jude Medical Inc., 2017 ONSC 5129, 9 C.P.C. (8th) 321, at para. 4, aff’d 2018 ONSC 6352, 429 D.L.R. (4th) 739 (Div. Ct.), Perell J. stated:
The Defendants, St. Jude Medical Inc. and St. Jude Medical Canada, Inc. (collectively “St. Jude”) do not oppose the concept of third-party funding agreements, but they object to this particular Litigation Funding Agreement. St. Jude submits that the Agreement’s 2:1 distribution (which favors Bentham) of the 30 to 38% contingency fee makes the Agreement champertous. St. Jude also submits that the effect of the termination provision would permit Bentham to control the Houles’ litigation and thus the Litigation Funding Agreement interferes with the lawyer and client relationship and with the administration of justice and on this account it should not be approved by the court.
[107] Further, it would be contrary to the interests of justice to limit standing to raise the conflict of interest of class counsel to members of the proposed class. The possibility of any member of the proposed class recognizing the conflict of interest and raising it with the court is remote. Limiting standing to the proposed representative plaintiff or a proposed class member would result in the conflict issue being rarely, if ever, raised before the court.
[108] Consequently, I find that the defendants can raise the conflict issue, an approach consistent with the case law on the issue and the principles set out in McKercher and Fantl.
2. Estoppel
[109] Singh relies on a letter dated October 21, 2019, arising from a case conference in which Justice Belobaba asked the defendants to advise which aspects of s. 5(1) they would oppose (previously defined as the “October 2019 Letter”). Counsel for RBC IA wrote:
Fifth, with respect to s. 5(1)(e) of the CPA, RBC IA does not intend at this time to take the position that Mr. Singh is not a suitable representative plaintiff, but reserves the right to take that position, particularly in light of the evidence filed and any cross examinations.
[110] By letter dated April 13, 2020[^11] and a subsequent exchange of communications, counsel for RBC IA confirmed by email dated May 29, 2020 that:
[M]y client wishes to proceed with the motion for an order temporarily staying Mr. Singh’s individual action until the certification of the proposed class action has been determined or until further order of the court, and removing Monkhouse Law as lawyers of record for Mr. Singh (or any proposed representative plaintiff) in the class action or for Mr. Singh in his individual action, or both, on the basis of conflict of interest.
[111] The April 13, 2020 letter was sent prior to the delivery of any responding materials or cross-examinations,
[112] The law of promissory estoppel is settled. A party seeking to rely on the doctrine as a defence “must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position”: Maracle v. Travellers Indemnity Co. of Canada, 1991 CanLII 58 (SCC), [1991] 2 S.C.R. 50 at p. 57. The promise or assurance must be clear and unequivocal: Engineered Homes Ltd. v. Mason, 1983 CanLII 142 (SCC), [1983] 1 S.C.R. 641 at p. 646.
[113] For the reasons that follow, I find that the October 2019 Letter does not give rise to promissory estoppel such that the defendants are precluded from raising the conflict issue.
[114] The October 2019 Letter does not state that RBC IA would not challenge whether Monkhouse Law had a conflict of interest in acting on both the Class Action and Individual Action. While that issue can be addressed as part of the representative plaintiff analysis (as in Persaud), it has also been addressed as a separate issue before certification (as in Vaeth).
[115] In my scheduling reasons (2020 ONSC 3907), I held that the conflict issue can be addressed separately from the representative plaintiff issue, so that (i) the proposed class members have unrestricted representation at the certification hearing; and (ii) Singh, with independent counsel acting in only one of the two actions, can then determine whether he wishes to continue as representative plaintiff, opt out, or otherwise decide how to proceed with his Individual Action.
[116] There is no mention in the October 2019 Letter about the conflict issue. There is no clear or unequivocal representation that RBC IA would not raise the conflict issue. Consequently, I find that no estoppel against challenging the conflict issue can arise from the Letter.
[117] Even if the position taken by RBC IA counsel at the case conference or in the October 2019 Letter could be interpreted as a representation that he would not challenge the conflict issue (which I do not find), I still would conclude that estoppel does not arise on the facts of the present case.
[118] Counsel for RBC IA did not bind his client to maintain its position throughout the litigation. Counsel stated that RBC IA “does not intend at this time” to challenge whether Singh was a representative plaintiff, but “reserves the right to take that position”. On that basis, no estoppel would lie in any event.
[119] Further, Singh has not established that he relied on any representation (if made) to his detriment.
[120] The only evidence relied upon by Singh is in Ms. Monkhouse’s affidavit where she states that Monkhouse Law “was contacted by numerous class members since the claim has been issued [but] Monkhouse Law did not until recently inquire whether potential class members would be interested to act as co-representative plaintiffs”.
[121] However, RBC IA advised Singh that it would bring a conflict motion before responding materials were delivered or cross-examinations were conducted. Singh was not prevented from seeking another representative plaintiff before continuing with the scheduled steps in the certification process. The defendants did not insist on maintaining the certification motion hearing date as a tactical approach to limit the plaintiff’s ability to find another representative plaintiff. To the contrary, when faced with the conflict issue, it was the plaintiff who insisted on maintaining the schedule for the certification motion on a parallel track with the conflict motion. The defendants did not challenge the plaintiff’s request and the matter proceeded on the two tracks.
[122] Consequently, I find that there was no prejudice caused if there was any representation in the October 2019 Letter that a conflict motion would not be brought (which I do not find to have occurred).
[123] For the above reasons, I reject the estoppel position taken by Singh.
3. Delay
[124] Singh submits that the court should dismiss the conflict motion because it is brought more than a year after the claims were issued in both the Class Action and the Individual Action, and after steps have been taken in the action including (i) a scheduling motion in the class action, (ii) a motion to strike the individual action before Justice Dow, (iii) case conferences before Justice Belobaba and myself, (iv) exchange of materials for certification, and (v) cross-examination on these materials.
[125] Singh relies on case law which sets out the principle that a conflict motion must be brought on a timely basis; otherwise the court can deny removal of counsel on the basis that the motion is “tactical”: Meagher v. Hooper-Holmes Canada Limited, 2020 ONSC 4480, at para. 23.
[126] It may be that in certain circumstances, the timing of a conflict motion to address a duty of commitment could be relevant. By way of example, if both the Class Action and the Individual Action were on the eve of trial, it may be a relevant factor for the court’s discretion to consider whether the motion was being brought for tactical reasons given an extensive delay.
[127] However, that issue does not arise on the facts of the present case.
[128] RBC IA advised of its intention to bring the motion in April 2020. There is no evidence of any steps taken in the Individual Action at that point, and the minor procedural skirmishes in the Class Action did not engage any substantive issues. As I discuss above, no responding certification material was filed by that point and cross-examinations had not taken place. It was only at Singh’s insistence that those steps took place before the conflict issue was determined by the court. Consequently, there is no evidence to support a tactical reason for the delay.
[129] On this motion, the court is asked to address a conflict of interest that could prejudice both the members of the proposed class and Singh. While delay might be a factor in a hypothetical case, a motion brought well before the delivery of responding materials, cross-examination, or the certification motion itself does not create a concern that the present motion is brought for tactical reasons.
[130] Consequently, I do not dismiss the motion based on delay.
The Stay Motion
1. The applicable law
[131] I adopt the following principles, which are not at issue:
(i) A judge case managing a class action has the jurisdiction to order a temporary stay of an individual action pursuant to s. 13 of the CPA, s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, and Rule 6 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, without a motion for a stay being filed in the individual action: Rooney v. Arcelormital S.A., 2013 ONSC 6062, at paras. 54-59; Vaeth, at paras. 37-42;
(ii) A lower threshold applies when a temporary, rather than permanent, stay of an individual action is sought while a class action proceeds. In Bank of Montreal v. Ken Kat Corporation, 2010 ONSC 1990, cited in Rooney, at para. 75, Cameron J. held, at para. 69:
Temporary stays pending the resolution of another proceeding are typically granted when the other proceeding would “substantially reduce the issues to be determined” or if success in the other proceeding could render the outstanding issues in the case “substantially moot” or otherwise have a “material” impact;
(iii) A temporary stay of an individual action, while a class action is pending, will be appropriate where: (a) there is “substantial overlap of issues” in the two proceedings; (b) the two cases share the same factual background; (c) issuing a temporary stay will prevent unnecessary and costly duplication of judicial and legal resources; and (d) the temporary stay will not result in an injustice to the party resisting the stay: Rooney, at para. 74; Vaeth, at paras. 54-55;
(iv) A temporary stay of an individual action, where a class action is pending, may be appropriate if the defendants to the two actions “cannot be in two places at once”. An individual action and class action require coordination and administration, the need for which supports a temporary stay of an individual action: Vaeth, at para. 57; and
(v) Where the class counsel are also counsel in the individual action, or where the plaintiff is the same in both actions, it is unavoidable that the deemed undertaking prohibiting the use of information from one action for the purposes of another will be violated: Vaeth, at paras. 23 and 74.
[132] For the reasons I discuss above, there is a substantial overlap of issues in the two actions. The issue of whether RBC IA and Aviva General are common employers, as well as the issue of whether the commissions paid included vacation and statutory holiday pay, are currently before the court in both actions. The overlap results in the risk of inconsistent judgments. A temporary stay until certification will prevent unnecessary and costly duplication of judicial and legal resources. Consequently, a temporary stay is appropriate.
[133] The defendants sought a temporary stay of the Individual Action until all appeals on certification were determined. At the hearing, the defendants agreed to limit that request to a stay pending a certification determination by this court, without prejudice to seek a further stay after such a determination, based on the facts at that time.
[134] In my opinion, the more limited temporal approach is reasonable. For example, if I deny certification at the motion before me, Singh might choose to proceed with his Individual Action and not wait for the certification appeals to be determined. Conversely, if I grant certification on the motion before me, Singh may still choose to proceed with an Individual Action and opt out of the Class Action rather than wait for all appeals to be decided, or he may opt out in any event depending on advice from counsel (who could be new counsel if Monkhouse Law removes itself as counsel from the Individual Action). Consequently, I limit the temporary stay of the Individual Action to my determination on the certification motion.
[135] Singh opposes a stay based on his submission that he has “excluded” the vacation and statutory holiday pay issues from his Individual Action, so there is no overlap. However, as I discuss above, I do not agree, as both the common employer and vacation and statutory holiday pay issues arise in both actions.
[136] Issuing a temporary stay will not result in an injustice to Singh. He has chosen to act as a representative plaintiff in the Class Action, so he would reasonably anticipate that the Individual Action would have to be stayed at least until certification.
[137] For the above reasons, I grant the temporary stay of the Individual Action until the decision on certification by this court.
Order and costs
[138] I order that (i) Monkhouse Law be removed as counsel in either the Class Action or the Individual Action and (ii) the Individual Action be stayed until determination of certification by this court.
[139] Counsel requested the opportunity to make written costs submissions and I agreed that such a process was appropriate. If the parties cannot agree on costs, RBC IA shall deliver brief written costs submissions of no more than four pages (not including a costs outline) by no later than September 23, 2020. Singh shall deliver a responding written costs submission of no more than four pages (not including a costs outline) by October 7, 2020. RBC IA may deliver a reply costs submission of no more than two pages by no later than October 14, 2020.
GLUSTEIN J.
Date: 20200909
COURT FILE NO.: CV-19-00618043-00CP
DATE: 20200909
ONTARIO
SUPERIOR COURT OF JUSTICE
KABIR SINGH
Plaintiff
AND:
RBC INSURANCE AGENCY LTD. and AVIVA GENERAL INSURANCE COMPANY
Defendants
reasons for decision
Glustein J.
Released: September 9, 2020
[^1]: In both the Class Action and the Individual Action, Singh alleges that “RBC” (defined in the claim as RBC IA together with Aviva General) and “Aviva Canada” are jointly liable for any amounts owing to him and to the members of the proposed class on the basis that “RBC” and “Aviva Canada” are alleged to be common employers or partners. Given that RBC IA and Aviva General are the only named defendants, the effect of this pleading is that RBC IA and Aviva General are common employers or partners.
[^2]: See footnote 1 above.
[^3]: In the cited passage below, Winkler J. also expressed concerns about Ms. Bulloch-MacIntosh having conflicting duties by acting as a representative plaintiff when she had an individual action, but that issue is not before the court on this motion.
[^4]: The plaintiffs in the individual action had not opted-out since the certification motion had not yet occurred.
[^5]: Perell J. held that those individual plaintiffs “must each make a decision whether to participate in the class action or to opt-out”: at para. 165.
[^6]: In the present case, the defendants do not seek the removal of Monkhouse Law as counsel of record in the Class Action. The defendants will challenge at the certification motion whether Singh can be a representative plaintiff if he seeks to continue his individual action, but the defendants do not object to Monkhouse Law continuing to act as counsel in the Class Action if they are removed as counsel for Singh in the Individual Action. However, even if Singh chooses not to be the representative plaintiff, the defendants submit that the same conflict would exist, as in Vaeth, such that Monkhouse Law would still need to be removed as counsel in the Individual Action if it sought to remain as counsel in the Class Action.
[^7]: The issue of whether Singh would need to be replaced as a representative plaintiff if he chose to continue with his Individual Action is not before me on this motion.
[^8]: During the statutory period, the amount owed would be $1,000 per month under the defendants’ interpretation, as it would already include vacation and statutory holiday pay.
[^9]: (whether or not the representative plaintiff is also the plaintiff in the individual action)
[^10]: (if the same defendants were coincidentally named in the class action and motor vehicle accident claim)
[^11]: The April 13, 2020 letter from counsel for RBC IA was not included in the motion records but was referred to in the e-mail chain filed as an exhibit to the affidavit of Ms. Monkhouse.