Privacy breaches often result in a multiplicity of class actions, across a multiplicity of jurisdictions in Canada, both at the national and the provincial level.

Often these actions are commenced by different firms, resulting in carriage fights in one or more provincial courts.

Courts can consider up to 17 (17!) different factors in determining which firm should be granted carriage of the claim, and which actions should be stayed.

Those factors are as follows:

    1. The Quality of the Proposed Representative Plaintiffs;
    2. Funding;
    3. Fee and Consortium Agreements;
    4. The Quality of Proposed Class Counsel;
    5. Disqualifying Conflicts of Interest;
    6. Relative Priority of Commencement of the Action;
    7. Preparation and Readiness of the Action;
    8. Preparation and Performance on Carriage Motion;
    9. Case Theory
    10. Scope of Causes of Action;
    11. Selection of Defendants;
    12. Correlation of Plaintiffs and Defendants;
    13. Class Definition;
    14. Class Period;
    15. Prospect of Success: (Leave and) Certification;
    16. Prospect of Success against the Defendants; and
    17. Interrelationship of Class Actions in more than one Jurisdiction.

Many of these factors are often considered by the Court to be “neutral” or a “wash”, and as such do not affect the outcome of a carriage fight. This results in one or two factors (out of the 17 enumerated) being the determinative factors in which firm is awarded carriage of the class action.

In his recent decision in Winder v. Marriott International Inc., Mr. Justice Perell found that 16 of the 17 factors were “neutral”, and relied on factor 17 in awarding carriage of the matter to the successful plaintiff’s law firm.

Perell J. found that the “multiplicity of proceedings” involved in the competing firm’s (or Consortium’s) proposal weighed against the Consortium (a group of law firms that had agreed to cooperate and share the work and, presumably, the potential fee) in deciding which group should be awarded carriage.

The Consortium had proposed that there would be a multiplicity of class actions in various jurisdictions (indeed, one member of the Consortium had commenced three different class actions in three different provinces), while the successful firm proposed one national class action (for those outside of Quebec), and one Quebec class action.

Perell J. relied upon s. 138 of Ontario’s Courts of Justice Act in finding that a multiplicity of actions should be avoided, and as such the firm proposing only two class actions was awarded carriage of the national class action, with separate counsel handling the Quebec class action (because of the different rights available to Quebec residents pursuant to Quebec’s Civil Code).

This decision may result in plaintiff’s counsel focusing on “national” class actions, rather than regional ones, especially given that national class actions are likely to have more class members. This will increase the exposure for both insurers and commercial enterprises who fall victim to privacy breaches which cross provincial borders.

See: Winder v. Marriott International Inc., 2019 ONSC 5766 (CanLII)

Mikel Pearce

Mikel (pronounced “My-Cle” or “Michael”) is a trapeze artist trapped in the body of an insurance defence and coverage lawyer. His name might suggest that he is Catalan Spanish, but no one in Mikel’s family is Spanish. Or Catalan. Although he does like cats.

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