Nordheimer J. recently granted leave to appeal to the Divisional
Court in Mancinelli v Barrick Gold, 2014 ONSC
7431, opening the door to some much-needed guidance in the law
applicable to carriage motions.
On December 11, 2014, the Superior Court granted carriage of a
class action stemming from misrepresentations made by Barrick Gold
in relation to a Chilean mining project to the Rochon Genova group
of law firms, consisting of Rochon Genova, the Merchant Law Group,
and Rosen Naster (2014 ONSC 6516). Belobaba J. preferred the
Rochon Genova Group over the Koskie Minsky group of law firms,
consisting of Koskie Minsky, Siskinds, Sutts Strosberg, and Groia
and Company. After Belobaba J. found most of the factors
traditionally considered on a carriage motion to be neutral –
the representative plaintiffs, the relative priority of
commencement, the resources and experience of counsel, conflicts of
interest and funding arrangements – the motion came down to
the claims being advanced and the state of preparation, under both
of which the Rochon Genova Group "clearly and decisively came
While Belobaba J. praised the extensive preparation that the
Rochon Genova Group put forward at the motion, the primary
differences between the counsel groups reflected a divergence in
strategy rather than in skill or experience. Both groups of firms,
as acknowledged by Belobaba J., had more than sufficient expertise
and experience to act as class counsel. However, the Koskie Minsky
Group proposed to bring a more streamlined action with fewer causes
of action. The Rochon Genova Group proposed a more comprehensive
action with more claims. Further, the Rochon Genova Group put
forward expert evidence to support its more extensive claim –
a strategy that many class action lawyers might view as revealing
too much, too soon. Belobaba J.'s preference for the broader
litigation framework and more extensive and costly preparation
appeared to depart from prior decisions on carriage motions, which
tended to favour narrower claims.
Belobaba J.'s analysis calls into question the level of
scrutiny that competing claims in a carriage motion should face. Do
courts confine the analysis to the viability of claims, or conduct
a more qualitative analysis? Nordheimer J. disagreed with Belobaba
J.'s approach of going no further than determining whether a
claim is "frivolous", rather than conducting a more
nuanced and comparative analysis between the competing claims at
issue. Belobaba J., however, held that doing any more than looking
for "glaring deficiencies or obvious defects" in the
competing pleadings would constitute a departure from existing case
law. Nordheimer J. found that the case law favoured a more nuanced
approach and did not support giving the advantage to the firm that
expended more resources on preparation after it was clear there
would be a carriage battle. As a result, he granted leave to appeal
Belobaba J.'s decision.
Carriage motions of this nature will arise more frequently in
the future. Motion judges are not dealing only with competing firms
anymore, but with competing groups of firms that are clearly
experienced and qualified to have carriage of the action. How
should they be distinguished? Belobaba J.'s decision to favour
the counsel with the more comprehensive, and therefore complicated,
action does not seem consistent with recent jurisprudence favouring
counsel with a more streamlined, and therefore straightforward,
approach that will likely facilitate certification and a quicker
resolution of the action. More appellate guidance is needed to
remedy the lack of clarity in how to approach carriage motions, for
both motion judges and counsel. Therefore, leave to appeal in this
case is a welcome development.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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