‘One For All’: When will courts appoint representative counsel?

Superior Courts across Canada have jurisdiction, both under s. 11 of the Companies’ Creditors Arrangement Act and s. 183(1) of the Bankruptcy and Insolvency Act, to appoint representative counsel in proceedings involving debtor companies. Appointing representative counsel is a tailored remedy aimed at streamlining complex proceedings with large numbers of stakeholders and claimants, which have the potential to become unwieldy. In determining whether such an appointment is appropriate, courts will consider several, non-exhaustive factors (first articulated in Canwest Publishing Inc. / Publications Canwest Inc., Re, 2010 ONSC 1328), including the vulnerability of the claimant group who seeks representation, any tangible benefits to the debtor company, public policy reasons that militate in favour of representation, and the balance of convenience. While there is broad recognition of Superior Courts’ discretion to appoint representative counsel, cases in which this discretion is exercised are relatively uncommon. Nevertheless, several recent decisions from courts across the country provide meaningful guidance on how the Canwest factors will be applied.