The class action is based on misrepresentations alleged to have
been made by Barrick Gold in relation to a Chilean mining project.
In a December 2014 carriage motion, Belobaba J. granted carriage of
the securities class action to the group of law firms led by Rochon
Genova, rather than to the group of firms led by Koskie Minsky.
Nordheimer J. granted leave to appeal later that month.
At the Superior Court, Belobaba J. preferred the extensive
preparation and broader claims put forward by the Rochon Genova
Group, rather than the more streamlined approach taken by the
Koskie Minsky Group. While Nordheimer J. appeared to strongly
disagree with Belobaba J.'s minimalist approach of going no
further than determining whether a claim is "frivolous",
the Divisional Court gave significant deference to Belobaba
J.'s analysis and found no basis on which to set aside the
carriage order. The Divisional Court viewed the Koskie Minsky
Group's appeal as merely an attempt to get another kick at the
can – trying to convince the Court to reweigh the factors
already considered by Belobaba J. – which is not the
Court's role on an appeal. Reviewing each of the carriage
factors and the motion judge's accompanying analysis, the
Divisional Court found no reason to intervene, instead deferring to
Belobaba J.'s discretion and expertise in class
In endorsing Belobaba J.'s decision so comprehensively, the
Divisional Court has made clear that it will give significant
deference to motion judges on discretionary decisions made under
the Class Proceedings Act, and particularly on carriage decisions
where the motion judge has expertise in class proceedings.
While Nordheimer J.'s leave decision gave hope to
practitioners that guidance about the law applicable to carriage
motions would be forthcoming, the Divisional Court did not provide
any significant guidance. Instead, the Court supported a case-based
analysis, which maintains the unclear state of the law and could,
in fact, encourage more disputes in the future.
As a particular aspect of this uncertainty, this decision has
left open the question of whether motion judges should prefer
narrower or broader claims on carriage motions. Prior to Belobaba
J.'s decision, the case law on carriage disputes exhibited a
trend of judges granting carriage to the more narrow, streamlined
claim, as such claims tend to be easier to certify, more expedient
and less complicated overall. However, in this case, Belobaba J.
thought it was in the best interests of the class to grant carriage
to the representative plaintiff whose action had the most expansive
reach and the higher number of genuinely viable claims. Belobaba
J.'s analysis essentially begins with a threshold check on the
viability of the claims asserted – which is not a high
threshold – followed by a discretionary test as to which
competing claim would best serve the interests of the class. Given
the Divisional Court's approval of Belobaba J.'s approach
in this decision, it may be prudent for counsel bringing claims in
the context of securities class actions to assert as many viable
claims as possible, rather than cherry picking only those that seem
most likely to succeed in an effort to present a more streamlined
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).