A carriage motion is meant to determine which one of a number of
competing proposed class proceedings may proceed in a province.
When there are parallel or related class proceedings in other
jurisdictions, the situation is more complex as there is no real
mechanism for the court of one jurisdiction to stay or make a
determination of preferability on class proceedings in another
In Kowalyshyn v Valeant Pharmaceuticals
Inc., 2016 ONSC 3819, two competing securities class
actions, O'Brien and Kowalyshyn, were present
in Ontario. In addition, there were two similar class proceedings
in BC, one in Quebec and several in the US. Each class action was
with respect to alleged misrepresentations made by Valeant
Pharmaceuticals that cost investors approximately $60 billion
worldwide. One of the Ontario actions, Kowalyshyn, was
associated with the two BC proceedings and the other,
O'Brien, with the Quebec proceeding.1 Plaintiffs'
counsel in the two Ontario actions, O'Brien and
Kowalyshyn, ultimately proceeded to a carriage battle to
determine who should control the litigation.
Justice Perell compared the two claims using the traditional
factors considered on carriage motions. All but two of those
factors were neutral and two slightly favoured the
O'Brien action.2 Justice Perell also considered a new
factor, the interrelationship of class proceedings in other
provinces. For Justice Perell, this new factor ultimately
determined the motion.3
After summarizing the problem of multiplicity of class actions,
Justice Perell identified and described six problems that confront
the goal of judicial economy and the avoidance of a multiplicity of
class proceedings in class actions. These are:
the right of a putative class member to opt-out (right of
individual actions to proceed alongside class actions);
influence and importance of class size and class member
law firms prospecting for quick profit from class action
defendants double dealing;
absence of ability to consolidate proceedings that are
initiated in multiple jurisdictions; and
rarity of local class actions and prevalence of parallel
regional, national or global class actions that are difficult to
Justice Perell found that the O'Brien action was
really a camouflaged stay motion brought by Ms. O'Brien on
behalf of the Quebec plaintiff, Mr. Catuci. As the Catuci
action was global in scope it was not clear what the purpose was
for commencing the Ontario O'Brien action, unless it
was to protect the viability and strength of the Quebec action. Ms.
O'Brien argued that the Catuci proceeding was the most
advanced and allegedly superior of all the Canadian proceedings and
initially advised that she intended to hold the O'Brien action
in limbo if granted carriage in Ontario.5
In these circumstances, what was most appropriate was forcing
the parties to deal directly with the matters really in issue - the
multiplicity of national class actions, how many class actions were
needed to serve the purposes of the class action regimes across the
country and whether one was really needed in Ontario – which
questions could not be determined on a carriage motion.6
As a result, carriage was provisionally granted to Ms.
Kowalyshyn by temporarily staying the O'Brien action
subject to the stay being lifted if Mr. Catuci or the defendants
brought a motion to stay the Kowalyshyn action in Ontario.
Similarly, if Ms. Kowalyshyn wished to continue to pursue a
national class action, then she would need to bring a stay motion
in Quebec of the Catuci action. The stay might also be
lifted if Ms. O'Brien was able to show strong cause why this
should be so. Finally, Justice Perell noted that if Ms. Kowalyshyn
agreed that Ms. O'Brien's action could be consolidated with
her action the temporary stay could also be lifted.7
This decision serves as a cautionary tale to plaintiffs'
counsel to carefully select the type of motion that they will bring
if they are unable to reach agreement with competing
1 Kowalyshyn v Valeant Pharmaceuticals Inc., 2016 ONSC
3819 at paras 5-7, 52
2 Ibid at paras 143-144, 175, 179, 182, 183, 189, 191,
194, 201, 202, 206, 210, 216, 221-223
3 Ibid at para 10
4 Ibid at paras 239-257
5 Ibid at paras 9, 269-271. See also para 58 where it is
set out that the Kowalyshyn consortium intended to
discontinue one BC proceeding and maintain the other BC as it
asserted an oppression remedy claim.
6 Ibid at paras 271-272
7 Ibid at paras 12, 273, 276
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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