Looking Forward: Class Actions in 2021
Written by Adam Zur
Carriage fights occur when overlapping class actions are commenced about the same alleged wrongdoing. Often, a stay motion is then brought to determine which representative plaintiff and class counsel should have carriage of the action. Carriage fights are common in provincial courts but, in 2020, the Federal Court of Appeal decided the first carriage fight in that court.
Two sets of plaintiffs started overlapping class actions on behalf of Métis and Non-Status Indians who were affected by the “Sixties Scoop” (the practice of separating Indigenous children from their families and communities, and placing them in foster homes for adoption). The plaintiffs both moved for carriage of the class action.
Having little jurisprudence to rely on, the Federal Court adopted the multi-factor test established by the Ontario courts for determining carriage, which includes a non-exhaustive list of factors such as the quality of the proposed representative plaintiff, the quality of proposed Class Counsel, the preparation and readiness of the action, the class definition, and the theory of the case.
The Federal Court also relied on seminal Ontario case law to adopt the principle that “the best interests of the class are paramount”, and that a court should have flexibility in determining what the best interests of the class are in the circumstances. The Federal Court granted carriage to the representative plaintiff to Brian Day, stating that he was a textbook complainant given the severity of the damages he suffered, and that Class Counsel for the Day action had a greater level of expertise in a key area of the litigation (Bennett Jones acted as counsel for Mr. Day). The representative plaintiffs in the overlapping Laliberte action appealed.
In Laliberte v Day, the Federal Court of Appeal affirmed the lower court’s decision to grant carriage to Day. The Federal Court of Appeal emphasized that the carriage factors are not ends in themselves, and that the factors are not “watertight compartments”. Carriage should not be decided on a “tick the boxes” approach, nor by tallying points awarded on a factor-by-factor basis. Carriage factors are a way to assist the court in the unique context of each case, to determine the best interests of the class.
Both Courts recognized that Mr. Day personified some of the worst consequences of the Sixties Scoop, and his circumstances made him an ideal representative to advance claims on behalf of the class. The Federal Court of Appeal also noted that Class Counsel in both proposed actions had extensive class action experience, specifically with experience in the Sixties Scoop and residential schools class actions, as well as experience acting for Métis individuals. But unlike Class Counsel in the Laliberte action, Class Counsel in the Day action also had experience acting for Non-Status Indians, who comprised a lot of the class. For these reasons, the Day action was given carriage of the matter because it was in the best interests of the class.
This case represents the first of its kind to be heard in the Federal Courts. It remains to be seen whether the Federal Courts will continue to adopt the factors established in the Ontario case law for determining carriage motions. Lawyers representing businesses in federally regulated undertakings, such as banks, airlines and railways, should know that this decisions set a precedent for future carriage fights that take place in the Federal Courts.