A carriage battle is one where two or more plaintiffs'
counsel compete to be class counsel on the same proposed class
action. When agreement is not possible, the Court will hear
arguments and determine who will have "carriage".
Carriage battles have been described as "a casting call or
rehearsal for the certification motion" and it has been noted
that these motions, "[n]o doubt to the delight of the
defendants ... involves the rivals hardheartedly and toughly
reviewing and criticizing each other's work and pointing out
flaws, disadvantages, and weaknesses in their rivals' plans for
suing the defendants." see paras. 2-3 of
2012 ONSC 24. To read more about carriage battles, please click
Until recently, once carriage was awarded this was thought to be
the end of the matter. Between 2007 and 2010, a series of
proposed class actions were commenced with respect to the diabetes
drug Avandia. A carriage motion in 2010 resulted in an agreement
that the law firm Kim Orr was awarded carriage of the Avandia class
action initiated by the representative plaintiff Lloyd and the
other proposed class actions were effectively stayed. It was
also agreed that another firm, McPhadden Samac Tuovi
("MCST"), would be permitted to participate in the Lloyd
class action at Kim Orr's discretion and on the condition that
no steps would be taken without Kim Orr's approval. In
2013, MCST brought a motion to "transfer carriage" to
their firm alleging that the failure of Kim Orr to bring a motion
for certification constituted unreasonable delay. This is the
first time such a motion has been brought.
In Waheed v. Glaxosmithkline Inc., 2013 ONSC 5792,
Justice Belobaba found that there was jurisdiction for such a
motion under s. 12 of the Class Proceedings Act, 1992, the
general procedural and supervisory provision, and went on to
determine the motion on its merits. Justice Belobaba noted at
the outset that:
"...any test for the removal and replacement of
plaintiffs' counsel in a proposed or actual class action
proceeding must recognise that as a general rule class counsel,
acting on plaintiffs' instructions, should be able to run the
lawsuit as they see fit. This includes deciding the shape,
content and pace of the litigation."
That said, Justice Belobaba articulated, for the first time, a
test where, "the court should intervene to replace carriage
counsel on the ground of unreasonable delay" as set out
the delay is clearly unreasonable by current class action
there is evidence of actual prejudice or harm to the putative
the explanation for the delay is inadequate; and
a court order requiring Firm A to bring the certification
motion within an expedited time period (failing which it will be
replaced by Firm B) is not, in all the circumstances, either
workable or in the best interest of the class.
Justice Belobaba found that MCST failed to satisfy each part of
the test he articulated. MCST did not show that most class
proceedings are certified in less than three years. No comparative
evidence was provided to support the allegation of unreasonable
delay and Justice Belobaba noted that, "[i]t is well known
that class proceedings generally move at a glacial
pace." There was also no evidence of actual prejudice or
harm to the putative class members. Kim Orr on the other hand
provided credible and adequate reasons for their delay, including
co-ordination with experts in a parallel US proceeding and awaiting
the appeal outcome of related litigation. Further, Kim Orr
undertook to file the certification motion by the middle of
November. As a result, none of the criteria were met.
Nonetheless, Justice Belobaba did mention that the putative
class members were the beneficiaries of the motion as it was the
threat of being replaced that encouraged Kim Orr to commit to
filing the certification motion materials. Justice Belobaba
indicated that he was not inclined to award costs and, although it
was open to Kim Orr to submit such, no costs submissions were
received. As a result, Justice Belobaba dismissed the motion
The language of Justice Belobaba suggests that the recourse
requested by MCST should occur in rare and exceptional
circumstances. It is unlikely that this decision will open
the floodgates for armchair class counsel to step into the shoes of
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