Buis v. Keurig Canada Inc, 2023 ONSC 87(Buis) highlights the factors courts will consider on carriage motions following the October 2020 amendments to the Class Proceedings Act, 2002 (the CPA). Carriage motions are brought where there are multiple class actions commenced by separate class counsel in the same jurisdiction alleging the same claims on the same set of facts. On these motions, the court is asked to grant “carriage” of the proposed class action to one set of representative plaintiff and class counsel and stay all other overlapping claims. While defendants do not typically take a position on carriage motions, it is important for defendants to monitor carriage motions as they may reveal the plaintiffs’ theory of the case and fact-finding completed to date. Defendants may also be able to glean which jurisdiction class counsel deem the most favourable or appropriate in circumstances where they have commenced claims in multiple jurisdictions.
In Buis, Regional Senior Justice (RSJ) MacLeod awarded carriage against the class counsel who commenced overlapping claims in the Federal Court and the Ontario action. RSJ MacLeod found that class counsel’s position that they would stay the Federal Court action if they were awarded carriage in Ontario, yet continue the Federal Court action if they were not awarded carriage, militated against them. Carriage was thus awarded to the other class counsel, who had not filed a claim in any other jurisdiction.
In Buis, two actions, referred to as the Buis Action and the Gordon Action, sought carriage of a proposed green washing class action alleging that a manufacturer’s marketing of single-use coffee pods as “recyclable” was misleading. This alleged misrepresentation also sparked class action litigation in the US and a Canadian Competition Bureau investigation culminating in a CA$3 million penalty against the manufacturer.
In Buis,RSJ MacLeod clarified that the non-exhaustive common law factors previously considered on carriage motions prior to October 2020 amendments remain relevant. However, courts must consider the factors set out in section 13.1(4) of the CPA:
- The representative plaintiff’s theory of the case and any fact finding supportive of this theory;
- Each proceeding’s relative likelihood of success on certification and as a class action;
- Class counsel’s expertise and experience in class actions; and
- The funding of each proceeding and any third-party funding agreements.
In applying these factors, RSJ MacLeod found that the two actions were comparable, despite the actions’ different litigation strategies. The determinative factor was that class counsel in the Gordon Action had commenced a parallel claim in the Federal Court, which they agreed to stay if they were granted carriage in Ontario. However, RSJ MacLeod held this was an implicit admission that Ontario was the preferable forum, but also an implicit threat class counsel would continue their action in a less favourable forum if denied carriage in Ontario. As a result, carriage was granted to the other class counsel who had not commenced a parallel proceeding in another jurisdiction.
Buis demonstrates that while commencing proceedings in multiple jurisdictions is not abusive on its face, class counsel may risk losing carriage where they intend to prosecute the same claims in alternative jurisdictions without strong grounds for doing so.
Defendants should continue to monitor carriage motions for insight into plaintiff’s and class counsel’s litigation strategy. Additionally, in awarding carriage, courts may also comment on potential hurdles or challenges in the plaintiff’s case, which is relevant to defendants considering early resolution, preliminary motions, or their certification defence strategy.