“Exclusivity Orders” - an End Run Around Carriage Motions?

In Harpreet v. Cronos Group, 2020 ONSC 4522 (“Harpreet”), the Plaintiff in a proposed securities class action sought what his counsel referred to as an “exclusivity order” – i.e. an order that no other action may be commenced in Ontario in respect of the subject matter of the action on behalf of the putative class without leave of the court. The Court denied the Plaintiff’s request.

An exclusivity order, or Heyder order, prevents the commencement of another action on the same facts without leave of the Court, effectively deciding carriage of the matter. Ultimately, the Court in Harpreet was not persuaded to depart from the status quo and ruled that carriage would be dealt with when and if another proposed class action on the same subject matter was commenced. The Court viewed the request for an exclusivity order as “a form of end-run around a potential carriage motion."