THE ADVOCATE 509
VOL. 79 PART 4 JULY 2021
text of settlement. Those duties are ill-defined but at a minimum include
the obligation to take steps to ameliorate any prejudice arising from a proposed
settlement or discontinuance of an uncertified class action, including
by providing notice to absent putative class members.
While it is well established that counsel for a representative plaintiff in
an uncertified class action is not in a solicitor-client relationship with putative
class members, courts have recognized that proposed class counsel is
in a “sui generis relationship” with absent putative class members that
imposes certain responsibilities on counsel. These responsibilities are created
from the outset of a proceeding brought under class action legislation
and are particularly triggered in the context of settlement:
Having commenced the class proceeding, the proposed representative
plaintiff and his counsel have assumed significant responsibilities to all
members of the putative class. It is inconsistent with such responsibilities
to negotiate a settlement of the claims of only some members of the class
and abandon the class proceeding.33
The nature and extent of counsel’s sui generis duty to non-client putative
class members of an uncertified class action remain ill-defined. While
courts have cryptically described the duty as imposing “at least some
responsibilities” on proposed class counsel,34 it has also been observed that
“it is hardly fair or even feasible before certification to impose the full complement
of tort, contract and fiduciary responsibilities on a lawyer”.35
The recent Ontario case of Singh v. RBC Insurance Agency Ltd. provides
some assistance and demonstrates that counsel’s sui generis duty to putative
class members at a minimum includes a duty of commitment in the context
of settlement (i.e., “the ability of counsel to zealously advocate for the class
members”).36 In Singh, a motion to disqualify proposed class counsel (before
certification) for a conflict of interest was granted where counsel had commenced
both an individual action and a class action for the same plaintiff
against the same employer related to similar claims. The Ontario Superior
Court found that counsel’s sui generis duty to putative class members put
her in a conflict of interest in that she would not be able to simultaneously
fulfill a duty of commitment to both the putative class and the plaintiff in
the individual action in the context of settlement.
In Singh, the court noted that in all class proceedings proposed class
counsel must 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. The court has inherent
jurisdiction to ensure that the interests of class members are not subordinated
to the interests of either the representative plaintiff or class counsel,
and to ensure that class counsel complies with the sui generis duty of com-