While the route of appeal for decisions on carriage motions has
been examined in other jurisdictions in Canada, the recently
released reasons in Locking v. Armtec Infrastructure
Inc. mark the first time that the Court of Appeal
for Ontario has weighed in on the issue. Noting the absence
of specific guidance on the matter in the Class Proceedings Act, 1992 (the
CPA), the Court turned to the Courts of Justice Act (the CJA)
and found that a motion judge's order on a carriage motion is
interlocutory and appeal lies to the Divisional Court, with
Two class proceedings were commenced against the defendant,
Armtec Infrastructure, and certain of its officers, directors and
underwriters alleging misrepresentations under both the common law
and the Ontario Securities Act in respect of a
March, 2011 offering of common shares. The first action was
commenced on June 16, 2011 by Sutts, Strosberg LLP on behalf of the
proposed representative plaintiffs Bruce Simmonds, Robert Grant and
Gordon Moore (the Simmonds Action). The second action was
commenced on July 7, 2011 by Siskinds LLP on behalf of proposed
representative plaintiff Keith Locking (the Locking Action).
Counsel in both actions sought carriage on a motion heard before Justice Thomas in December
2011. After reviewing the factors to be
considered on a carriage motion and comparing the two actions,
Justice Thomas dismissed the carriage motion brought by Siskinds,
stayed the Locking Action and awarded carriage to Sutts, Strosberg
LLP in the Simmonds Action.
After examining the CPA, the CJA and decisions from the Courts
of Appeal for British Columbia and Newfoundland and Labrador, the
Court of Appeal for Ontario came to the conclusion that a motion
judge's order on a carriage motion is interlocutory in nature;
staying the Locking Action would not bring the proceedings to an
end and Locking had not lost his right to sue the defendants - he
could remain as part of the proposed class action in the Simonds
Action or he could opt out and pursue his action
independently. The Court was of the view that this was
consistent with the jurisprudence in other jurisdictions and noted
that "to the extent possible, there is some advantage to
uniformity of approach in class proceedings in Canada".
As an interlocutory order, the decision on carriage in the
Locking Action should have been appealed to the Divisional Court,
with leave. On September 18, 2012, Justice Grace granted
Locking leave to appeal in respect of whether the motion judge
erred in his analysis of the theories and attributes of the Locking
and Simmonds actions, and if so, whether the motion judge erred in
his disposition of the carriage motions -  OJ No 4444
(SCJ). The Appeal has not yet been argued.
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