Carriage Motions in Ontario: Inconsistent Application of An Indeterminate Test
Author | Gerald Antman |
Pages | 101-127 |
101
CARRIAGE MOTIONS IN
ONTARIO: INCONSISTENT
APPLICATION OF AN
INDETERMINATE TEST
Gerald Antman
Abstract: Ontario’s Class Proceedings Act does not explicitly
provide judges with the jurisdiction to decide carriage mo-
tions. As a result, a discretionary test has been developed
over the last sixteen years for what factors judges are to con-
sider in deciding carriage in Ontario. While almost twenty
factors are listed to be considered, the list is non-exhaustive.
In this paper, through a review of recent carriage decisions
in Ontario, Manitoba, and British Columbia, I show which
factors are typica lly applied and the way in which they are ap-
plied. I use this quantitative analysis to show that factors are
not applied consistently and new factors are added when old
ones are not determinative. I argue that the inconsistent ap-
plication of an indeterminate test creates problems with con-
sistency and predictability for the parties, and creates delays
and extra cost that are ultimately borne by the class. Given
that this test has been cited and used to decide carriage in
other provinces, the importance of creating a consistent test
for carriage extends beyond the scope of Ontario’s Act.
Lastly, considering that the test is non-exhaustive, I argue
for the addition of a new factor: diligence of prosecution in re-
lation to the time of filing. Through a recent carriage motion
decision and a settlement approval hearing, I show how, in
certain circumstances, this factor should be enough to tip to
scales of carriage.
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