One of the most significant decisions in a class action can come long before any ruling on certification. For plaintiff’s counsel, class members, and even defendants, any decision on carriage will have obvious and long-lasting effects on how a particular class action will proceed. It has now been over a decade since Canadian courts first articulated the factors to be considered when resolving carriage fights in class proceedings. Since the Vitapharm decision in 2000, there have been examples of chaos brought about by inconsistent carriage decisions, as well as examples of uniformity of approach by courts across Canada. Recently, Ontario courts have decided several high-profile cases on carriage that have better clarified the approach that will now be taken on carriage decisions in the future (at least in Ontario). Ultimately, a review of carriage decisions since Vitapharm shows that, while the specific factors given emphasis by the court on carriage motions may change across time and the facts of each case, the concern for the best interests of the class is always at the fore.
Timothy Morgan (Sun,) studied this question.