Carriage Motions in Ontario: Inconsistent Application of an Indeterminate Test

Ontario’s Class Proceedings Act does not explicitly provide judges with the jurisdiction to decide carriage motions.
As a result, a discretionary test has been developed over the last sixteen years for what factors judges are to consider 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 typically applied and the way in which they are applied. 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 application of an indeterminate test creates problems with consistency 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 relation 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.