Simon's Megalomaniacal Legal Resources

Class Proceeding (Fed) - Certification - Representative Party [FCR 334.16(1)(e)]

. McMillan v. Canada

In McMillan v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal, this from class action orders from a motion judge of the Superior Court that "dismissed Mr. McMillan’s motion to certify the action as a class proceeding on the basis that his statement of claim failed to disclose a reasonable cause of action" and refused "leave to amend his statement of claim".

Here the court considers the 'representative party' element of class action certification under the Federal Rules:

(3) Is Mr. McMillan an Adequate Representative Plaintiff?

[164] The final requirement for the certification of a class proceeding is that there be a representative plaintiff who can satisfy the Court that he or she would, amongst other things, "“fairly and adequately represent the interests of the class”": Rule 334.16(1)(e)(i). The Federal Court found that Mr. McMillan was not an adequate representative plaintiff in this case, as his own claims were statute-barred: Federal Court reasons at para. 115.

[165] Mr. McMillan accepts that a person who is not a member of a proposed class cannot be an adequate representative plaintiff in a class proceeding in the Federal Court: see the discussion of this issue at paragraphs 103−110 of Jost, above.