Canada: The Manitoba Court Of Appeal Confirms Stay Of One Class Action In Favour Of Another On The Same Issue


The question of who should have carriage of a proposed class action is an important one. It determines which plaintiff can define the proposed class, pursue certain claims, and which law firm will represent the lead plaintiff in the proposed class. When faced with multiple claims and proposed classes relating to the same issue, a Court must decide who will have carriage of the matter going forward to certification. The Manitoba Court of Appeal's recent decision in Thompson et at v Minister of Justice of Manitoba et al (the "Appellate Decision") provides some indication that courts, when faced with competing potential class actions, may prefer claims with a narrower focus and fewer defendants (and therefore a potentially better chance of being certified).1

The Carriage Motion

This proposed class action arose from the provincial and federal governments' actions in the "60's scoop", when Aboriginal children were removed from their families and placed with non-Aboriginal parents. The children subject to these removals now seek damages.

On March 13, 2015 Lynn Thompson, David Chartran, and Laurie-Anne O'Cheek filed what was referred to as a "replacement claim" in their proposed class action (the "Thompson Action") against Her Majesty the Queen in Right of Manitoba, as Represented by the Minister of Justice of Manitoba and Her Majesty the Queen in Right of Canada, as Represented by the Minister of Indian and Northern Affairs of Canada.2 The proposed class action was under The Class Proceedings Act.3 The causes of action included breach of fiduciary duty, negligence, and cultural genocide. 4 The proposed class was:

All Aboriginal persons ... who were removed by the Defendants from their families or communities as children, and suffered injuries due to the Defendants' breach of fiduciary obligations, duty of care and cultural genocide, and their dependants and family members, any other subclasses that this Court finds appropriate. 5

On April 20, 2016, Priscilla Meeches and Stewart Garnett filed a separate claim (the "Meeches Action") against the Attorney General of Canada seeking damages for losses similar to those set out in the Thompson Action. 6 The causes of action in the Meeches Action were breach of fiduciary duty and negligence. The sole defendant was the Attorney General. The proposed class in the Meeches Action was:

[A]ll Indian, non-status Indian, and/or Metis children who were taken from (a) their homes on reserves lying within the boundaries of the [Children's Aid Societies] in Manitoba, or (b) resided within the boundaries of the [Children's Aid Societies] and had not established residence in a place other than a reserve in Manitoba, at or after September 2, 1966, and were placed in the care of non-Aboriginal foster or adoptive parents who did not raise the children in accordance with the Aboriginal person's customs, traditions, and practices.

At the carriage motion (the "Motion Decision") the Motion Judge considered numerous factors and decided that the interests of the putative class and the policy objections of The Class Proceedings Act would be best served by the Meeches Action. 7 In reaching his decision the Motion Judge considered the nature and scope of the causes of action, the theories of the cases, the state of each action, the resource and experience of counsel for each of the plaintiffs, and the prospects of certification. 8 Additionally, he considered the argument that he should allow both actions to proceed to a certification hearing but held that this would needlessly complicate the certification process and would not be in the best interests of the putative class. 9 The Thompson Action was consequentially stayed. 10 The plaintiffs in the Thompson Action appealed the Motion Decision and the stay of their action.

The Manitoba Court of Appeal dismissed the appeal, holding that the motion judge was entitled to deference on a discretionary question like this. 11 In its decision the Court provided further comment on several of the appellant's arguments. The plaintiffs in the Thompson Action argued that the class in the Meeches Action was too narrow and would exclude members included by the proposed class in the Thompson Action. However, the Court of Appeal deferred to the motion judge, who was alive to this issue. The Court of Appeal stated that exclusion from the class did not mean those individuals would be deprived of access to justice; they would instead have to advance individual claims.

Additionally, the Court of Appeal also deferred to the Motion Judge's decision that the Meeches Action was more likely to be certified, as it only involved one defendant and because it did not raise the "novel and potentially problematic" claims raised in the Thompson Action. 12 The Meeches Action was also more likely to be certified, according to the Motion Judge, because it relied on pleadings from a similar class action in Ontario. 13 Overall, the factors weighed in favour of the Meeches Action proceeding and in having one action, rather than two, proceed to a certification hearing.


This decision, the first time the Manitoba Court of Appeal considered a carriage motion, confirms the factors a court should consider when determining who should have carriage of a class action. 14 It also confirms that a carriage motion should be heard prior to certification and that courts may be reluctant to allow competing proposed class actions to proceed certification hearings. In considering the best interests of a putative class, the Court may consider what action has the best chance of success at a certification application and may factor into its decision questions of how specifically defined the proposed class is and how successful the proposed claims may be. Ultimately, this decision signals that decisions about which party receives carriage of a matter should be based on a consideration of what is best for the putative class, in consideration of the policy objectives set out in The Class Proceedings Act.


1 Thompson et at v Minister of Justice of Manitoba et al, 2017 MBCA 71.

2 Ibid at paras 3-4. The "replacement claim" was filed to correct a service issue. The initial action was filed on April 20, 2009 and was eventually discontinued.

3 CCSM c C130..

4 Appellate Decision at para 6.

5 Ibid at para 5.

6 Ibid at para 8.

7 Thompson v Manitoba (Minister of Justice), 2016 MBQB 169 [the "Motion Decision"].

8 Ibid at para 43.

9 Appellate decision at para 43.

10 Motion Decision at para 13.

11 Appellate Decision at para 42.

12 Ibid at paras 31, 49.

13 Ibid at para 50.

14 Ibid at para 17.

To view original article, please click here.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions