Class Actions and Beauty Pageants: The Need for Carriage Motion Reform in Ontario

• Author: Cole Pizzo
• Pages: 111-137

111

Class Actions and Beauty Pageants: The Need for

Carriage Motion Reform in Ontario

Cole Pizzo

AbstrAct: In Ontario, carriage motions have been embraced as the

designated method for determining which of competing class counsel

will exclusively represent the class. Despite the foundational objective

of judicial economy, carriage motions persist as inecient and deeply

f‌lawed procedures. Since the initial factors for the court to consider were

enumerated in Vitapharm, the test has grown into a lengthy list of factors

which are neither mandatory nor exhaustive. This promotes uncertainty

and does little to foster judicial economy or serve the best interests of the

putative class.

I argue that carriage motions have developed in an unfeasible dir-

ection. They encourage wasted resources and ef‌fort, create delay in an

already lengthy process, and may ultimately prejudice the class. In search

of an alternative, I employ a multijurisdictional analysis. The approach

of the Federal Court of Australia in resolving competing actions is con-

sidered, as is the post-Schmidt approach of Quebec. Embracing the modi-

f‌ied f‌irst-to-f‌ile rule of Quebec is the appropriate direction for carriage

motion reform in Ontario. Quebec’s approach balances concerns over

the complexity, uncertainty, and potential prejudice of carriage motions

with concerns over the arbitrariness and unfairness of a conventional

f‌irst-to-f‌ile rule. This would avoid the lengthy comparative analysis of

carriage motions while still serving the best interests of class members.

CCAR 15-1.indb 111 8/6/2019 4:33:29 PM

CCAR 15-1.indb 112 8/6/2019 4:33:29 PM