Who Takes the Reins? Carriage in Canada Over the Last Decade

• Author: Timothy Morgan
• Pages: 101-132

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WHO TAKES THE REINS?

CARRIAGE IN CANADA OVER

THE LAST DECA DE

Timothy Morgan

Abstract: One of the most signif‌icant decisions in a class

action can come long before any ruling on certif‌ication. For

plaintiff ’s counsel, class members, and even defendants, any

decision on carriage will have obvious and long-lasting effect s

on how a particular cl ass action will proceed.

It has now been over a decade since Can adian courts

f‌irst articulated the factors to be considered when resolving

carriage f‌ights in class proceedings. Since the Vitaphar m de-

cision in 2000, there have been examples of chaos brought

about by inconsistent carriage decisions, as well as examples

of uniformity of approach by court s across Canada. Recent-

ly, Ontario courts have decided several high-prof‌ile cases

on carriage that have better clarif‌ied the approach that will

now be taken on carr iage decisions in the future (at least in

Ontario). Ultimately, a review of carriage decisions since Vi-

tapharm shows th at, while the specif‌ic factors given emphasis

by the court on carr iage motions may change across time and

the facts of each ca se, the concern for the best interests of the

class is always at the fore.

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WHO TAKES THE REINS? A REVIEW OF

CARRIAGE DECISIONS OVER

THE LAST DECA DE

Timothy Morgan*

A. INTRODUCTION

It has been more than ten years since Canadian courts articulated the

factors to be considered when resolving carriage disputes between com-

peting class proceedings. While these factors have been applied across

Canada over the la st decade, several recent Ontar io decisions suggest

that, while the overall approach on carriage ha s not changed, certain

factors have taken prominence.

By examining the decisions on carriage across Canad a since the

Vitapharm case in 2000, an evolution in the approach to car riage can be

seen. Carriage f‌ights have become less of a race to the cour thouse and a

beauty pageant between l aw f‌irms, and more about the theories advanced

by counsel and how the underlying claims are structured and advanced.

While different factors may be given different weight in different cases,

the goal of the court remains the same: to safeguard the best interest s of

the class.

B. THE

VITAPHARM

TEST 2000

Any discussion of carriage in Can ada necessarily begins with the Ont ario

Superior Court’s decision in Vitaphar m Canada Ltd v F Hoffmann-La

Roche Ltd .1

In Vitapharm, the cour t was faced with ten competing Ontar io actions

alleging that the Vitapharm defendants had entered into conspiracies to

f‌ix the prices for their v itamins and related products. Several of the pro-

posed plaintiffs were represented by a joint counsel group consisting of

* Timothy Morgan pract ises class action and c ommercial litigation at

Podrebarac Ba rristers Profession al Corporation.

1 [2000] OJ No 4594 (SCJ) [Vitaphar m].

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