The service of a statement of claim in intended class action
proceedings often puts defendants in the spotlight of what can be a
protracted and frustrating roller coaster. When a defendant is
served with two or more class actions claims relating to the same
or similar causes of action, the spotlight turns to the
plaintiffs' counsel who must "duke it out" to assume
carriage of the matter. The Divisional Court's recent upholding
of Belobaba J.'s carriage order in Mancinelli v.
Barrick Gold Corporation reflects an application of the
principles governing carriage motions. The decision reflects how a
carriage motion can give rise to both insight and obstacles for
In Barrick, carriage of a class action against Barrick
Gold Corporation and four of its executives was awarded to a
consortium led by Rochon Genova ("RGG"), and staying a
competing action led by Koskie Minsky ("KMG"). The
competing actions arose from Barrick's disclosure on April 10,
2013 that construction had been suspended at its mine in Chile, and
the subsequent shut down of the project due to environmental
violations. Belobaba J. held, and the Divisional Court agreed, that
the two factors in the non-exhaustive list of considerations on a
carriage motion favouring RGG were the claims they were advancing,
and their level of preparation.
The KMG action was advancing what it termed a "leaner and
meaner" case. This plaintiff group put forward a single claim
based on the defendant's misrepresentations about environmental
violations. The RGG action advanced four distinct claims including
(1) misrepresentations relating to environmental violations; (2)
misrepresentations relating to overall costs and completion time
estimates; (3) misrepresentations in financial statements; and (iv)
conspiracy and fraudulent concealment. The Divisional Court agreed
with Belobaba J.'s conclusion that RGG's multiple claims
were viable and supported by the evidence to date. The courts were
not persuaded by KMG's submission that a "focused"
claim would be more likely to obtain certification.
Level of Preparation
The Divisional Court agreed with Belobaba J.'s conclusion
that the RGG action was in a more advanced state of preparation.
The Divisional Court found that Belobaba J.'s findings
reflected "a sustained and in-depth pattern of research and
preparation" by RGG, and this would further the interests of
Implications for Defendants
The "claims advanced" factor on a carriage motion can
provide an important preview for defendants into the case each
plaintiff group will advance. In order to demonstrate that the
action being advanced is in the best interests of the class, each
plaintiff group must put its best foot forward to demonstrate why
its action is viable, and likely to be certified. This gives
defence counsel a preview of what each plaintiff group will argue
on the ultimate certification motion. While a carriage motion is
not a determination of which action is most likely to succeed,
defence counsel may be able to hone in on strengths and weaknesses
in each action based on the questions of the judge during the
hearing of the motion, or through the judge's reasons.
The relevance of the "state of preparation" factor can
operate less favorably for defendants. For obvious reasons, it
encourages plaintiffs' counsel to do a significant amount of
work, not only to build their case, but to show the court that
their case is more advanced. This motivates plaintiff groups to get
their action to an advanced stage early in the game, which may
involve the delivery of significant amounts of evidence and expert
reports. A defendant, on the other hand, does not even know which
action it will ultimately respond to, which can make preparation
while a carriage motion is pending problematic.
What defendants can do is seek an undertaking – as Barrick
did in this case – that both counsel groups will take all
necessary steps to permanently stay or dismiss any parallel
Canadian proceeding, and will not facilitate the commencement of
any other parallel Canadian proceeding. It was confirmed by the
Divisional Court that the undertaking given by KMG and RGG in this
case included law firms outside Ontario. This facilitates some
certainty for defendants, at least as far as the counsel groups in
the carriage motion are concerned. With this undertaking, the
carriage motion effectively determines which action is proceeding
and in what jurisdiction, such that the defendants can focus on
responding to the certification motion when carriage is
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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