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.