Plaintiff not suitable representative of class
Motion for certification of action claiming as class proceeding. Plaintiff was former franchisee that operated store from January 2005 to April 2008, when it abandoned business. Defendant had not disputed that plaintiff met cause of action requirement. Order adjourning motion with leave to bring motion to substitute new representative plaintiff. Grave concerns about competence and suitability of proposed representative plaintiff. Plaintiff who complains about franchisor’s good faith and fair dealing did not itself display reciprocal obligation of good faith and fair dealing. Plaintiff guilty of egregious breaches of contract and was itself guilty of non-disclosure. Plaintiff not suitable representative of class. Sole motivation in commencing action was to deflect franchisor’s claims under franchise agreement. Not kind of exceptional case where court should refuse altogether to consider suitable replacement. Would be unfair to proposed class to dismiss motion outright having found action to be otherwise suitable for certification without giving another representative opportunity to come forward. Would be waste of time, money and judicial resources to require that class start afresh.
6323588 Canada Ltd. v. 709528 Ontario Ltd. (May 23, 2012, Ont. S.C.J., Strathy J., File No. CV-08-7587-00CL) 217 A.C.W.S. (3d) 278 (24 pp.).