2.16: Court-appointed litigation representatives in limited cases
2.21: Litigation representative: termination, replacement, terms and conditions
2.6: Representative actions

Case Summary

One of the three Plaintiffs brought an Application to be appointed as the Litigation Representative for the other two Plaintiffs under Rules 2.16 and 2.21, as well as certification of the three Plaintiffs as a class under the Class Proceedings Act, SA 2003, c C-16.5 (“CPA”). Jones J. held that a Litigation Representative under the Rules reflects what was formerly referred to as a Next Friend or Guardian Ad Litem, under the old Rules. As a result, the jurisprudence regarding the old Rules is binding on the new Rules surrounding Litigation Representatives.

Jones J. relied on Salmon v Alberta (Minister of Education), (1991), 120 AR 298, and Torrance v Alberta, 2010 ABCA 88, for the proposition that a lay Next Friend could not act as counsel for a disabled person. Similarly, under the new Rules, except where the Court exercises its discretion to allow representation by non-lawyers or where otherwise provided for in an express exception, representative Plaintiffs must be represented by counsel. In determining whether or not to use the Court’s discretion to allow a non-lawyer to represent the Plaintiffs, Jones J. referred to and relied on Pacer Enterprises Ltd v Cummings, 2004 ABCA 28, and held that the circumstances in this case were not appropriate to do so. The Plaintiff’s Application to be appointed as Litigation Representative was dismissed.

Lastly, the Court considered Rule 2.6(1) in deciding the lone Plaintiff’s Application to have the three Plaintiffs certified as a Class. Jones J. stated that an Action may still be started under Rule 2.6(1), independent of the CPA, and that the requirements for a Class Action to be certified under this Rule were outlined in Korte v Deloitte, Haskins & Sells (1993), 135 AR 389 (CA). Despite the Plaintiffs meeting this test, Jones J. held that Rule 2.6(1) referred to “numerous” persons, and did not intend for this to include only three individuals. As a result, the Application was dismissed.

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