Abstract: In Ontario, carriage motions have been embraced as the designated method for determining which of competing class counsel will exclusively represent the class. Despite the foundational objective of judicial economy, carriage motions persist as inefficient and deeply flawed procedures. Since the initial factors for the court to consider were enumerated in Vitapharm, the test has grown into a lengthy list of factors which are neither mandatory nor exhaustive. This promotes uncertainty and does little to foster judicial economy or serve the best interests of the putative class. I argue that carriage motions have developed in an unfeasible direction. They encourage wasted resources and effort, create delay in an already lengthy process, and may ultimately prejudice the class. In search of an alternative, I employ a multijurisdictional analysis. The approach of the Federal Court of Australia in resolving competing actions is considered, as is the post-Schmidt approach of Quebec. Embracing the modified first-to-file rule of Quebec is the appropriate direction for carriage motion reform in Ontario. Quebec’s approach balances concerns over the complexity, uncertainty, and potential prejudice of carriage motions with concerns over the arbitrariness and unfairness of a conventional first-to-file rule. This would avoid the lengthy comparative analysis of carriage motions while still serving the best interests of class members.
Cole Pizzo (Thu,) studied this question.