Bridging borders: reforming Canada's approach to resolving carriage challenges in light of global practices

• Author: Oscar Read
• Position: Law Clerk at MinterEllisonRuddWatts in the Construction and Infrastructure Disputes Team
• Pages: 79-97

79

Bridging Borders: Reforming Canada’s Approach to

Resolving Carriage Challenges in Light of Global

Practices

Oscar Read

AbstrAct: Canada faces a carriage crisis. Mass breaches frequently affect

persons across Canada in each province. Each mass breach results in

duplicative class actions filed in multiple provinces. The result is a prov-

incial fight for carriage and a national fight for membership of potential

class plaintiffs. Carriage within provinces is decided at a carriage motion;

carriage on a national scale is decided on an ad hoc basis in the isolation

of the superior court of whichever province the national class action(s) is/

are filed. In this essay, I take a comparative approach to proposing reform

to provide a procedure for the ecient resolution of intra- and inter-prov-

incial carriage disputes. I take stock of Canada’s current approach to

resolving carriage disputes and then draw from the experience of other

common law jurisdictions: Aotearoa New Zealand, Australia, the United

Kingdom, and the United States. Drawing on their experience, I propose

three changes: two legislative and one judicial. I propose first that each

province enact legislation restricting provincial jurisdiction over class

members; second, that each province enact legislation enabling the

transferring of jurisdiction over cases between the provinces; and third,

a judicial change from seeing comity as a principle of deference to seeing

it as a principle of leadership and cooperation. The overall goal of the

reform will be to centralise decisions within one province for the ecient

resolution of carriage issues, both within and between provinces.