In a recent carriage decision, Winder v Marriott, 2019 ONSC 5766 ("Winder"), Siskinds LLP was appointed as Class Counsel of a national class proceeding out of Ontario against Marriott International, Inc., Luxury Hotels International of Canada, ULC, and Starwood Canada ULC on behalf of all Canadian residents whose personal information was accessed by unauthorized parties in or as a result of a major data breach disclosed by Marriott on November 30, 2018. This data breach compromised the privacy and personal information of approximately 500 million Marriott customers worldwide.
The Winder decision resolves carriage only with respect to four Ontario class proceedings. Outside of Ontario, there are several ongoing and overlapping class actions in other provinces with respect to the same defendants and subject-matter, including in British Columbia where carriage is contested.
Traditional Legal Principles Respecting Carriage
In Winder, the Court was tasked with granting carriage of the Ontario claims to either Siskinds or a consortium of Canadian law firms. In making this determination, Justice Perell addressed several overarching legal principles:
- Civil procedure policy and section 138 of the Courts of Justice Act direct that as far as possible, the overlapping or multiplicity of legal proceedings must be avoided. In other words, there should not be two or more class actions proceeding with respect to the same subject-matter, causes of action, and class members;
- Where class proceedings overlap, the purpose of a carriage motion is to determine which one action should be selected to proceed. In light of the prime objectives of class proceedings including access to justice, behaviour modification, and judicial economy, the court will grant carriage to the proposed class counsel whose action is more or most likely to advance the best interests of the class; and
- In determining carriage, the court will consider a non-exhaustive list of 17 factors to determine which action should proceed. These factors established by the jurisprudence concern the qualifications of the proposed representative plaintiffs and class counsel, and the quality of each proposed litigation plan.
The Court's Carriage Determination and Progressive Direction Regarding the Multiplicity of Class Actions
The Winder Court considered the above traditional carriage factors, but also went further and provided guidance with respect to the management of overlapping class actions across Canada. Specifically, the Court considered possible outcomes that could flow from the granting of carriage in Ontario, including the streamlining of overlapping national class actions into one or two jurisdictions.
In this consideration, Justice Perell placed significant emphasis on the recommendations of the Uniform Law Conference of Canada Civil Law Section ("ULC") in its Report of the Uniform Law Conference of Canada's Committee on the National Class and Related Interjurisdictional Issues: Background, Analysis and Recommendations,1 which identifies best practices for the coordination of multijurisdictional class actions. This approach has been adopted by statute in Alberta,2 and British Columbia.3 The Law Commission of Ontario recently recommended that this approach also be formally adopted in Ontario.4
Siskinds and the consortium of Canadian law firms proposed differing approaches to the case management of overlapping actions across Canada:
- The consortium brought overlapping class actions in British Columbia, Alberta, Ontario, and Nova Scotia, but did not make clear whether it intended to prosecute one or more class actions simultaneously, or whether its intention was to prosecute one class action in one jurisdiction while informally "parking" or "pausing" its other class actions;
- Conversely, Siskinds was committed to prosecuting a national class action out of Ontario, and was prepared to employ the ULC provisions addressing competing multi-jurisdictional class actions in order to co-ordinate with counsel in the other actions across the country.
Bearing in mind the ULC approach alongside the traditional carriage factors, Justice Perell noted that in the context of this case, the courts, rather than class counsel, should make the determination of how to manage the overlapping actions. Based on the record before him, His Honour found that there was a reasonably strong case that Ontario was the singular forum conveniens for a national class action. Accordingly, the Court granted Siskinds carriage of the Ontario claims, and the actions of the consortium were stayed.
The "tipping point" in granting carriage to Siskinds was Siskinds' litigation plan respecting the interrelationship of class actions in more than one jurisdiction. Siskinds' approach allowed for the possibility that, ultimately, the overlapping claims across the country could be distilled into one or two class proceedings involving one to three law firms at the most. Conversely, the consortium arrangement did not provide an efficient solution to the problem of multiplicity. The Court noted that pursuant to this arrangement, up to nine law firms could be involved in case managing and resolving the overlapping actions. Therefore, the consortium's approach presented problems for courts across the country including, among others: (i) inefficiency, (ii) duplication of fact-finding, legal analysis, and creating an evidentiary record, (vi) the possibility of inconsistent outcomes across the country, and (vii) wasted judicial resources.
Ultimately, the Court suggested that the parties consider procedural steps following the granting of carriage to resolve the multiplicity of proceedings across Canada. Such steps include that: (a) the defendants should bring simultaneous forum conveniens motions, and/or (b) Siskinds should bring motions to settle actions in provinces that have adopted the ULC legislation.
The Winder decision signifies the Court's desire to bring greater harmonization, communication, and co-operation to overlapping multijurisdictional class proceedings in Canada. Specifically, the Court's reasons provide guidance with respect to the case management of overlapping class proceedings, and open the door to different possibilities, including procedural steps, that parties can consider in order to streamline or resolve multiplicity following the granting of carriage. Moreover, in cases where a consortium arrangement does not offer a solution to the problem of multiplicity, the carriage motion is a mechanism that can potentially be employed to reduce problems associated with overlapping proceedings.
1. (Vancouver, B.C., March 9, 2005); Winder v Marriott, 2019 ONSC 5766 [Winder] at paras 71-76.
2. Class Proceedings Amendment Act, SA 2010, c 15.
3. Class Proceedings Amendment Act, 2018, SBC 2018, c 16.
4. Law Commission of Ontario, Class Actions: Objectives, Experiences and Reforms: Final Report (Toronto, July 2019).
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