Nordheimer J. recently granted leave to appeal to the Divisional Court in Mancinelli v Barrick Gold, 2014 ONSC 7431, opening the door to some much-needed guidance in the law applicable to carriage motions.
On December 11, 2014, the Superior Court granted carriage of a class action stemming from misrepresentations made by Barrick Gold in relation to a Chilean mining project to the Rochon Genova group of law firms, consisting of Rochon Genova, the Merchant Law Group, and Rosen Naster (2014 ONSC 6516). Belobaba J. preferred the Rochon Genova Group over the Koskie Minsky group of law firms, consisting of Koskie Minsky, Siskinds, Sutts Strosberg, and Groia and Company. After Belobaba J. found most of the factors traditionally considered on a carriage motion to be neutral – the representative plaintiffs, the relative priority of commencement, the resources and experience of counsel, conflicts of interest and funding arrangements – the motion came down to the claims being advanced and the state of preparation, under both of which the Rochon Genova Group “clearly and decisively came out ahead.”
While Belobaba J. praised the extensive preparation that the Rochon Genova Group put forward at the motion, the primary differences between the counsel groups reflected a divergence in strategy rather than in skill or experience. Both groups of firms, as acknowledged by Belobaba J., had more than sufficient expertise and experience to act as class counsel. However, the Koskie Minsky Group proposed to bring a more streamlined action with fewer causes of action. The Rochon Genova Group proposed a more comprehensive action with more claims. Further, the Rochon Genova Group put forward expert evidence to support its more extensive claim – a strategy that many class action lawyers might view as revealing too much, too soon. Belobaba J.'s preference for the broader litigation framework and more extensive and costly preparation appeared to depart from prior decisions on carriage motions, which tended to favour narrower claims.
Belobaba J.'s analysis calls into question the level of scrutiny that competing claims in a carriage motion should face. Do courts confine the analysis to the viability of claims, or conduct a more qualitative analysis? Nordheimer J. disagreed with Belobaba J.'s approach of going no further than determining whether a claim is “frivolous”, rather than conducting a more nuanced and comparative analysis between the competing claims at issue. Belobaba J., however, held that doing any more than looking for “glaring deficiencies or obvious defects” in the competing pleadings would constitute a departure from existing case law. Nordheimer J. found that the case law favoured a more nuanced approach and did not support giving the advantage to the firm that expended more resources on preparation after it was clear there would be a carriage battle. As a result, he granted leave to appeal Belobaba J.'s decision.
Carriage motions of this nature will arise more frequently in the future. Motion judges are not dealing only with competing firms anymore, but with competing groups of firms that are clearly experienced and qualified to have carriage of the action. How should they be distinguished? Belobaba J.'s decision to favour the counsel with the more comprehensive, and therefore complicated, action does not seem consistent with recent jurisprudence favouring counsel with a more streamlined, and therefore straightforward, approach that will likely facilitate certification and a quicker resolution of the action. More appellate guidance is needed to remedy the lack of clarity in how to approach carriage motions, for both motion judges and counsel. Therefore, leave to appeal in this case is a welcome development.
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