Canada: Class Action Carriage Fights: Application Of The Principles In Multi-Jurisdicitonal Class Actions

In Thompson et al v Minister of Justice of Manitoba et al, ("Thompson") the Manitoba Court of Appeal considered the decision of a motion judge who stayed a proposed class action after another proposed class action was commenced in respect of the same subject matter. The Court's decision provides helpful guidance to all litigants involved in multi-jurisdictional class proceedings, and confirms that the outcome of a carriage motion turns on much more than who filed their claim first, or which claim has the larger class definition.

The two actions at issue in Thompson were commenced in relation to the events known as "the 60's scoop", in which Aboriginal children were removed from their families and placed with non-Aboriginal parents pursuant to government policies. One action was commenced seeking damages from Manitoba and Canada for breach of fiduciary duty, negligence and cultural genocide (the "Thompson Action"). Several years later, an action was commenced seeking damages from Canada alone for breach of fiduciary duty and negligence (the "Meeches Action").

The plaintiffs in the Thomson Action brought a motion seeking leave to proceed to certification to determine whether one or more class actions could be certified, and in the alternative, a stay of the Meeches Action. The plaintiffs in the Meeches Action then brought a motion seeking an order appointing their lawyers as counsel for the proposed class action, and a stay of the Thompson Action.

At the return of their motions, the Motion Judge considered which action would serve the interest of the putative class members, and the policy objectives of the Class Proceedings Act, (the "CPA"). The Motion Judge also considered the factors to be considered on a carriage motion as set out in VitaPharm Canada Ltd v F Hoffmann-LaRoche Ltd., being:

  1. the nature and scope of the causes of action advanced;
  2. the theories advanced by counsel;
  3. the state of each class action, including preparation;
  4. the number, size and extent of involvement of the proposed representative plaintiffs;
  5. the relative priority of commencing the class action (i.e. filing date); and
  6. the resources and experience of counsel.

In applying the above principles and factors, the Motion Judge considered that some of the proposed members of the class in the Thompson Action could be excluded by the proposed class definition in the Meeches Action, but that the class definition would be considered more carefully at certification. He also considered the differences between the causes of action and the defendants in each action, and found that the Meeches Action had a narrower focus and fewer defendants, and that the Thompson Action had theories of liability that were novel and potentially problematic. Accordingly, he was of the view that the Meeches Action was more likely to be certified.

He found the suitability of the representative plaintiffs in each action to be neutral, and that both actions were at the relatively same state of preparation. However, the Motion Judge also expressed concern about the delay from the time the Thompson Action was first filed, and found that the delay was not in the best interests of the putative class members. In the result, the motion judge stayed the Thomson Action and appointed the lawyers of the Meeches Action as lead counsel.

The plaintiffs in the Thompson Action appealed the decision of the Motion Judge. Their position on appeal was primarily focused on their argument that the class definition in the Meeches Action was deficient and the Motion Judge erred in considering how the pleadings could be amended to broaden the class, rather than on the basis of the record. They also argued that the Motion Judge went too far in assessing the merits of the causes of action in their claim: the Motion Judge should not have evaluated the suitability of the representative plaintiffs on the basis of the pleadings, that he should not have determined carriage prior to certification, and that he erred by taking fairness to the defendants into account.

The Manitoba Court of Appeal dismissed each of these arguments:

  • On the issue of the class definition, the Court found that even if the Meeches Action was certified with the existing class definition, and individuals who fall within the Thompson Action class definition would be excluded, they would not be deprived access to justice because they could advance individual claims;
  • On the issue of the scope of the claims in each action, the Court found that the Motion Judge considered all of the relevant differences between the two actions regarding the defendants, and that the plaintiffs in the Thompson Action had not identified an error in that regard;
  • Finally, on the issue of the suitability of the proposed representative plaintiffs, the Court found that the Motion Judge had considered an affidavit filed by one of the lawyers representing the plaintiffs in the Meeches Action, which did provide some evidence of the suitability of the representative plaintiffs.

Ultimately, the Court dismissed the appeal, without costs.

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