Carriage Motions in Ontario: Inconsistent Application of An Indeterminate Test

AuthorGerald Antman
Gerald Antman
Abstract: Ontario’s Class Proceedings Act does not explicitly
provide judges with the jur isdiction to decide car riage mo-
tions. As a result, a discretionar y test has been developed
over the last sixteen ye ars for what factors judges are to con-
sider in deciding car riage in Ontario. While almost twenty
factors are listed to be considered, the list is non-ex haustive.
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 inconsi stent ap-
plication of an indetermin ate test creates problems with con-
sistency and predictability for the parties, and creates delays
and extra cost th at are ultimately borne by the class. Given
that this te st has been cited and used to decide carr iage 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 hear ing, I show how, in
certain circumstances, this factor should be enough to tip to
scales of carriage.

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