Carriage disputes are a unique aspect of Canadian class action
practice which occur when two or more plaintiffs' counsel
compete to represent a proposed class in a yet-to-be certified
action. In deciding carriage disputes courts weigh a variety of
different factors including the experience of counsel, funding, and
the litigation plan, among others depending on the facts of the
particular case. Successful counsel earns the right to continue
prosecution of the action as a putative class proceeding.
In the most recent chapter of these types of disputes, Justice
Belobaba of the Superior Court of Ontario addressed the novel issue
of whether a court can revisit the issue of carriage, and reassign
class counsel on the basis that the counsel initially assigned
carriage had unreasonably delayed in moving the action forward.
The issue arose in the case of Waheed v Glaxosmithkline
Inc.1, a proposed class action against
Glaxosmithkline involving the manufacturing and distribution of the
Avandia" diabetes medication2. In November 2010, a
carriage motion being fought by the law firms of Kim Orr and
McPhadden Samac Tuovi was heard before Justice Strathy regarding
which of three actions would be allowed to proceed on behalf of the
proposed class. Before a decision was rendered, counsel agreed to
settle the motion on the basis that Kim Orr would be appointed
counsel for the plaintiffs in the first action, while the action
brought by McPhadden would be effectively stayed. This agreement
resulted in a consent carriage order dated November 19, 2010.
Almost three years later McPhadden brought a motion – the
first of its kind – to transfer carriage to them on the basis
that Kim Orr had unreasonably delayed the progression of the
Justice Belobaba, sitting as case management judge, first
addressed whether the Court has jurisdiction to hear a carriage
transfer motion. Relying on the broad jurisdiction provided by
section 12 of the Ontario Class Proceedings Act,
1992, he held that a case management judge has a
wide-ranging supervisory function, including determining motions to
remove and replace carriage counsel on the basis of unreasonable
He noted that cases where a carriage transfer motion will be
successful will be rare and, as a general rule, the court will
respect plaintiffs' counsel's ability and discretion to run
the case as they see fit. Although on the rare occasion of
"clear and unreasonable delay", the court may intervene
to replace carriage counsel. He then articulated a four part test
to determine whether the court should intervene to replace carriage
counsel on grounds of unreasonable delay:
the delay must be clearly unreasonable by then-current class
action litigation standards;
there must be evidence of actual prejudice or harm to the
putative class members;
the explanation for the delay must be inadequate; and
requiring the firm originally awarded carriage to bring the
certification motion within a designated time period (or else be
replaced by the moving firm) must be either unworkable or not in
the best interests of the class.
All four criteria must be met in order for success on the
In Waheed, the carriage transfer motion failed on all
four criteria. McPhadden failed to show that most class proceedings
are certified in less than three years or that this case was at
odds with the "glacial pace" at which class proceedings
typically move, and they provided no evidence of actual harm or
prejudice to the putative class members. Kim Orr, on the other
hand, provided explanations for the delay including the need to
coordinate with experts in a parallel American proceeding, and they
advised the court that it would be filing the certification motion
in the action within two months of the hearing of the carriage
Interestingly, Justice Belobaba denied Kim Orr costs of the
motion because the threat of being removed as counsel had prompted
them to commit to filing a certification motion quickly and thus
benefited the class members.
This decision suggests that carriage transfer motions will be
successful only in rare and exceptional circumstances. However, in
cases where plaintiffs' counsel has fought hard to gain
carriage of the case in the first place, this case may spur them to
move more quickly towards certification rather than risk another
fight over carriage.
1 2013 ONSC 5792.
2 Gowlings acts as counsel to the defendants in this
proceeding, and attended the motion but made no
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