In Toombs et al. v. Worksafe BC et al., 2025 ONSC 1379, released on March 5, Justice Michael Valente declined to waive a requirement under Rule 15.01(1) of the Ontario Rules of Civil Procedure (Rules), that any representative plaintiff be represented by legal counsel.
Justice Valente found that the lead plaintiffs had not provided any legal or evidentiary basis for the court to exercise its discretion to allow them to represent the proposed class members, noting that no lay person owes the fiduciary duty of counsel to the group of plaintiffs they purport to represent.
“Furthermore, no lay person’s conduct is governed by the rules of an overseeing regulatory body and no lay person would be insured against claims that might be made against them for damages in negligence in the conduct of the proceeding,” the judge added.
The proposed class action against provincial and territorial workers’ compensation boards and appeal tribunals alleges that their use of deeming statutory provisions, paid doctors, pre-existing conditions and intentional systemic delays violated the charter rights of injured workers.
The representative plaintiffs sought a declaration that the current workers compensation regimes are unconstitutional and that they should be converted to a no-fault system.
The proposed class action was commenced in 2021. However, the plaintiffs took no steps to advance the claim after it was issued.
The lead plaintiff, Paul Taylor, brought a motion seeking an order that the defendant Workplace Safety and Insurance Board (WSIB) pay all legal costs of the lead plaintiffs or, in the alternative, an order appointing an amicus curiae to represent the class plaintiffs in the putative class proceedings.
As another alternative, Taylor sought an order permitting the lead plaintiffs of the proposed class action to represent the class members.
Ontario's WSIB and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) brought a motion for an order dismissing the plaintiffs’ action for their failure to comply with Rule 15.
Justice Valente noted that Rule 15.01(1) mandates that any party acting in a representative capacity be represented by a lawyer and observed that representative plaintiffs in a class action are no exception to the requirement.
The judge cited Fenn v. Ontario, [2004] O.J. No. 2736, in which the Ontario Superior Court observed that the general policy reflected in Rule 15 was reinforced in the case of class actions by the need to ensure that a representative plaintiff does not consider his or her own interests to the exclusion of the interests of class members.
“The only way of ensuring that the interests of all proposed class members are protected is through the engagement of legal counsel,” Justice Valente wrote.
The judge noted that while there may be class proceedings in which compliance with Rule 15.01(1) might be dispensed with, the case at bar was not such a case.
“[T]he lead plaintiffs have proffered no evidentiary or legal basis for me to exercise my discretion in favour of their representing the putative class members,” the judge wrote.
He further observed that no lay person’s conduct is governed by the rules of an overseeing regulatory body and that no lay person would be insured against claims that might be made against them for damages in negligence in the conduct of a class proceeding.
“In addition, I reach this conclusion on account of the number of Charter issues raised in the statement of claim, the complexity of the issues, and the deficiencies in the pleadings,” he added.
The court held that the members of the proposed class require professional advice and guidance.
Justice Valente also noted that the lead plaintiff, Paul Taylor, had previously unsuccessfully litigated a number of the issues raised in the class action and that two motions brought by him had been dismissed as an abuse of process.
“This conduct on the part of Mr. Taylor causes me to pause and conclude that Mr. Taylor has a propensity to initiate abusive litigation. The proposed class members deserve better from their litigation representative,” the judge wrote.
He concluded that based on the finding that Rule 15.01(1) had been infringed, the court had jurisdiction to dismiss the action or stay the proceedings pending compliance with the rule.
The court also rejected the request that an amicus curiae be appointed to represent the proposed class, finding that there were no exceptional circumstances in the case at bar in which amicus was essential to adequately discharge the functions of the court.
The judge also declined to grant the plaintiffs an interim costs award on the basis that the plaintiffs had not established that they could not genuinely afford to pay for the litigation, a mandatory condition for such an order under case law.
“[A]part from not being satisfied that the lead plaintiffs cannot self fund the litigation, there is insufficient evidence in the record for me to conclude that no other realistic options are available to the lead plaintiffs to retain counsel,” the judge wrote.
The court observed that a contingency fee arrangement may be a realistic option in the context of the proposed class proceeding.
The court stayed the action pending the lead plaintiffs’ compliance with Rule 15.01(1) and permitted the defendants to bring a motion to have the action dismissed if the lead plaintiffs do not retain counsel within 120 days.
The WSIB declined to comment on the decision. Counsel for the WSIB was Jean Denis Belec.
Counsel for the WSIAT was Andrew Lokan of Paliare Roland Rosenberg Rothstein. He was not immediately available for comment.
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