Efficiency and cost effectiveness are key considerations under the new carriage test in s. 13.1 of the Class Proceedings Act, 1992, according to a recent decision of Justice Perell. Bonnick v. Simply Group[1] (“Bonnick”), released on December 29, 2021, is the first case to interpret the new statutory carriage test and consider its effect on the law for carriage motions.
BACKGROUND
Class Proceeding Act Amendments - Reform to Carriage Motions
On October 1, 2020, amendments to the Ontario Class Proceedings Act, 1992 (“CPA”) came into force. These amendments introduced section 13.1, a new provision that addresses carriage motions. Section 13.1 provides in part:
Carriage motions
13.1 (1) In this section,
“carriage motion” means a motion for an order under this section.
Stay of other proceedings
(2) Where two or more proceedings under this Act involve the same or similar subject matter and some or all of the same class members, the court may, on the motion of a representative plaintiff in one of the proceedings, order that one or more of the proceedings be stayed.
Timing
(3) A carriage motion shall be made no later than 60 days after the day on which the first of the proceedings was commenced and shall be heard as soon as is practicable.
Considerations
(4) On a carriage motion, the court shall determine which proceeding would best advance the claims of the class members in an efficient and cost-effective manner, and shall, for the purpose, consider,
(a) each representative plaintiff’s theory of its case, including the amount of work performed to date to develop and support the theory;
(b) the relative likelihood of success in each proceeding, both on the motion for certification and as a class proceeding;
(c) the expertise and experience of, and results previously achieved by, each solicitor in class proceedings litigation or in the substantive areas of law at issue; and
(d) the funding of each proceeding, including the resources of the solicitor and any applicable third-party funding agreements as defined in section 33.1, and the sufficiency of such funding in the circumstances.
Decision final
(5) The decision of the court on a carriage motion is final and not subject to appeal.[2]
Section 13.1 introduces several changes to the conduct of carriage motions in Ontario: it provides that carriage motions have to be brought within 60 days of the issuance of the first proposed class action.[3] It also provides that carriage decisions are final and cannot be appealed,[4] and that the lawyers for the representative plaintiffs shall bear the costs of the motion and shall not attempt to recoup any portion of the costs from the class or any class member, or from the defendant.[5]
Most importantly, section 13.1 includes a new statutory carriage test to guide the Court in analyzing and determining carriage as between rival class actions – section 13.1(4).[6]
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