



COURT OF APPEAL
    FOR ONTARIO

CITATION: Mancinelli v. Barrick Gold Corporation, 2016 ONCA
    571

DATE: 20160718

DOCKET: C61288

Strathy C.J.O., Pepall and Brown JJ.A.

BETWEEN

Joseph S. Mancinelli, Carmen Principato, Douglas
    Serroul, Luigi Carrozzi, Manuel Bastos, Jack Oliveira and Cosmo Mandella, in
    their capacity as The Trustees of the Labourers Pension Fund of Central and
    Eastern Canada, Mike Gallagher, Joe Redshaw, Rick Kerr, Alex Law, Brian Foote,
    Ron Martin, John Hartley, Nick Dekoning and Joe Keyes, in their capacity as the
    Trustees of International Union of Operating Engineers, Local 793, Members
    Pension Benefit Trust of Ontario and Michael Wiener

Plaintiffs (Appellants)

and

Barrick
    Gold Corporation, Aaron Regent, Jamie Sokalsky,

Ammar Al-Joundi and Peter
    Kinver

Defendants

AND BETWEEN

The Trustees of the Drywall Acoustic Lathing and Insulation

Local 675
    Pension Fund and Royce Lee

Plaintiffs (Respondents in Appeal)

and

Barrick Gold
    Corporation, Aaron Regent, Jamie Sokalsky,

Ammar Al-Joundi and Peter
    Kinver

Defendants

Paul Pape, Shantona Chaudhury and Joanna Nairn, for the
    appellants

W.A. Derry Millar and Peter Jervis, for the respondents

Kent E. Thomson and Steven G. Frankel, for the
    Defendants

Heard: April 27, 2016

On appeal from the order of the Divisional Court
    (Swinton, Harvison Young and Lederer JJ.), dated May 21, 2015, with reasons
    reported at 2015 ONSC 2717, 126 O.R. (3d) 296.

Strathy C.J.O.:

[1]

This is an appeal in a carriage dispute. Two consortia of law firms are
    litigating the right to represent the class in a multi-billion dollar
    securities action against Barrick Gold Corporation and four named executives,
    over alleged misrepresentations in Barricks public filings.

[2]

The motion judge awarded carriage to a group led by Rochon Genova LLP
    (collectively, Rochon) and stayed an action brought by plaintiffs represented
    by Koskie Minsky LLP and others (collectively, Koskie). He preferred Rochons
    broader claims and more extensive preparation to Koskies more streamlined
    approach. Koskie appeals.

[3]

The motion judge applied the multi-factor test set out in
Vitapharm
    Canada Ltd. v. F. Hoffman-Laroche Ltd
., [2000] O.J No. 4594 (S.C.J). He
    made findings of fact in applying the factors to the competing consortia and
    determined the weight to be given to those factors. His findings are entitled
    to deference. The appellants demonstrated no legal error in the application of
    the test. Accordingly, for the reasons that follow, I would dismiss the appeal.

I.

Background

[4]

Barrick, a Canadian gold company, had interests in a mining project in
    Chile, referred to as the Pascua-Lama Project. It obtained approvals from the
    Chilean government to develop an open-pit mine, subject to conditions regarding
    the projects environmental impact.

[5]

The proposed class actions allege that during the class period, Barricks
    public disclosures represented that its activities in Pascua-Lama complied with
    Chilean regulatory requirements and that it had comprehensive environmental
    protection measures in place.

[6]

The actions arise from Barricks disclosure on April 10, 2013 that a
    Chilean court had issued an interlocutory order suspending construction of the
    mine. The following month, Chilean regulators closed the project due to
    environmental violations. The resulting plunge in Barricks share price spawned
    shareholder class actions in the U.S. and Canada, alleging that the company and
    some of its officers had violated the
Securities Act
, R.S.O. 1990, c.
    S.5, by misrepresenting the progress of the mine in Barricks public
    disclosures.

[7]

Three actions remain active in Ontario. Two, referred to as the Lee
    and DALI actions, were commenced by members of the Rochon consortium. If
    granted carriage, Rochon proposes to consolidate these actions. The third
    action, referred to as the Labourers action, was commenced by Koskie.

[8]

The actions seek damages in the billions of dollars. If certified, the
    proceeding will be one of the largest securities class actions in Canada.

[9]

The actions are grounded in the common law and Part XXIII.1 of the
Securities
    Act
, and allege negligent misrepresentations by Barrick relating to
    the development and operation of the Pascua-Lama Project. Koskies action,
    however, focuses only on alleged misrepresentations about environmental
    compliance. Rochons DALI action, on the other hand, is broader. It alleges
    misrepresentations in three related areas: environmental compliance, the
    capital expenditure budget and Barricks financial statements. The DALI action
    also includes claims of conspiracy and fraudulent concealment.

[10]

Rochon filed a motion to certify the DALI action on September 22, 2014. This
    prompted a motion by Koskie on October 20, 2014 for a carriage order and a stay
    of Rochons action. Rochon brought a similar motion on the same day. The
    carriage motion was heard on November 12 and 13, 2014.

II.

the test in carriage motions

[11]

There cannot be two or more certified class actions in the same
    jurisdiction representing the same class in relation to the same claim. Where
    there are rival actions, a practice has developed for a proposed representative
    plaintiff to bring a motion for authorization to have his or her action proceed
    on behalf of all class members and to stay pending or future proceedings
    relating to the same issues. This is referred to as a carriage motion.

[12]

There are several sources of the courts jurisdiction to grant such relief.
    Section 12 of the
Class Proceedings Act, 1992
, S.O. 1992, c. 6 (
CPA

)
authorizes the court to make any order it considers appropriate respecting the
    conduct of a class proceeding to ensure its fair and expeditious determination.
    Section 13 gives the court jurisdiction to stay any proceeding related to the
    class proceeding. Moreover, s. 138 of the
Courts of Justice Act
,
    R.S.O. 1990 c. C.43, provides that [a]s far as possible, multiplicity of legal
    proceedings shall be avoided. Section 106 provides that a court may stay any
    proceedings in the court on such terms as are considered just.

[13]

The seminal carriage case is the decision of Cumming J. of the Superior
    Court of Justice in
Vitapharm
. He identified, at para. 48, the main criteria
    for determination of a carriage motion as: (a) the policy objectives of the
CPA
,
    namely, access to justice, judicial economy for the parties and the
    administration of justice, and behaviour modification; (b) the best interests
    of all putative class members; and, at the same time, (c) fairness to
    defendants.

[14]

He listed, at para. 49, the following factors for consideration on a
    carriage motion: (i) the nature and scope of the causes of action advanced;
    (ii) the theories advanced by counsel as being supportive of the claims
    advanced; (iii) the state of each class action, including preparation; (iv) the
    number, size and extent of involvement of the proposed representative
    plaintiffs; (v) the relative priority of commencing the class actions; and (vi)
    the resources and experience of counsel.

[15]

In
Sharma v. Timminco Inc
. (2009), 99 O.R. (3d) 260, an
    additional factor was identified: (vii) the presence of any conflicts of
    interest.

[16]

In
Smith v. Sino-Forest Corporation
, 2012 ONSC 24, Perell J.
    described the foregoing factors as non-exhaustive. He added six others that he
    considered relevant to the circumstances of the competing actions before him:
    (viii) funding; (ix) definition of class membership; (x) definition of class
    period; (xi) joinder of defendants; (xii) the plaintiff and defendant
    correlation; and (xiii) prospects of certification.

[17]

This list remains non-exhaustive. Other factors may have significance in
    the unique circumstances of other cases. Determinative factors in one case may
    have little or no significance in another.

[18]

I suggest an additional factor that may have a bearing. The proposed fee
    arrangement between class counsel and the representative plaintiff is a factor
    that vitally affects the interests of the class. While the fee is ultimately
    subject to the approval of the court, significant differences between the fee
    arrangements may be considered on a carriage motion.

[19]

In the hearing in the Superior Court, the motion judge indicated that if
    the seven
Vitapharm
and
Sharma
factors had failed to yield a
    measurable and objective difference between the competing firms, he would have
    considered the fee arrangements of the respective consortia. Both counsel had
    proposed a 30 percent contingency fee, a common arrangement in class
    proceedings. He mused whether counsel might be prepared to reduce their fee to
    say 25, or 20, or 10 percent if granted carriage. He referred to the
    possibility of a reverse auction. I note in this regard that some United
    States courts have instituted competitive bidding procedures in carriage cases:
    see Federal Judicial Center,
Manual for Complex Litigation
, (3d U.S.
    West Publishing, 1995) at p. 221, citing
In re Wells Fargo Securities
    Litigation
, 156 F.R.D. 223, 157 F.R.D. 467 (N.D. Cal. 1994); and
In re
    Oracle Securities Litigation
, 131 F.R.D. 688, 132 F.R.D. 538 (N.D. Cal.
    1990), 136 F.R.D. 639 (N.D. Cal. 1991).

[20]

There is room for debate about whether auctioning the right to represent
    the class will be in the best interests of the class. Is it in the best
    interests of the class to be represented by counsel who is prepared to take on
    the onerous professional and financial challenges of serving as class counsel
    at the lowest price? Will such counsel have a strong incentive to settle the
    case to recover their discounted fee at the earliest moment? Will such counsel
    be vulnerable to being ground down by the defence? On the other hand, is an
    auction a legitimate proxy for market realities? The issue does not call for a
    decision in this case and I would leave it, if necessary, for another day.

[21]

It seems to me that regardless of the balancing of the other factors, counsels
    fee arrangements are a factor to be considered, among others.

[22]

I would resist a tick the boxes approach to carriage motions. The
    issue is not which law firm wins on the most factors. Rather, it is the best
    interests of the class and fairness to the defendants, having regard to access
    to justice, judicial economy and behaviour modification.

III.

Decisions in the courts below

A.

The motion judge

[23]

Near the beginning of his reasons, the motion judge observed that the
    choice on a carriage motion is not between the relative resources and expertise
    of the competing firms. Rather, the question is which of the competing actions
    is more likely to advance the interests of the class?: see
Sino Forest
at para. 19 and
Tiboni v. Merck Frosst Canada Ltd
., [2008] O.J. No.
    2996 (S.C.J.). affd [2009] O.J. No. 821 (Div. Ct.).  He also observed that the
    court should not embark on an analysis of which claim is most likely to
    succeed: see
Sino-Forest
at para. 20 and
Setterington v. Merck
    Frosst Canada Ltd.
, [2006] O.J. No. 376 at para. 19.

[24]

He concluded that in this case two of the
Vitapharm
factors
    were most significant and the remainder were neutral.

[25]

First, the causes of action being advanced in the Rochon claim were
    broader than those in the Koskie claim. He found that Rochons
    misrepresentation claims, and the conspiracy claim, were genuinely viable and
    had evidentiary support. The fraudulent concealment claim was pleaded to
    address potential limitation periods. It was in the best interest of the class
    that the proceeding not be limited to one claim when three were genuinely
    available.

[26]

Second, the motion judge found that Rochon had achieved a level of
    preparation that was measurably and objectively superior to the Koskie group.
    This was reflected in the statement of claim. He would have granted carriage to
    the Rochon group on this basis alone.

B.

Leave to Appeal

[27]

Nordheimer J. granted Koskies motion for leave to appeal to the
    Divisional Court. He recognized that decisions on carriage motions generally
    involve the exercise of discretion, but held that this case raised serious
    issues about the principles to be applied in the exercise of that discretion.
    He found that the reasons of the motion judge suggested there was a conflict
    between the decision in
Locking v. Armtec Infrastructure Inc.
, 2013
    ONSC 331,

and the decision in
Setterington
, a conflict that
    the Divisional Court should resolve. He also considered that there was good
    reason to doubt the correctness of the decision below and that the issue of
    carriage was a matter of importance in class proceedings that warranted the
    Divisional Courts consideration.

C.

Divisional Court

[28]

The Divisional Court noted that the
CPA
gives judges broad
    discretion. Reviewing courts, it said, should defer to their decisions, unless
    an error of law is established: see
Cloud v. Canada (Attorney General)
(2004), 73 O.R. (3d) 401 (C.A.);
Cassano v. Toronto Dominion Bank
,
    2007 ONCA 781. This is especially so when the motion judge is a member of the small
    group of judges across the province with expertise in class proceedings. If the
    motion judge has identified and applied the correct test in determining which
    of the competing actions is most likely to advance the interests of the class, his
    or her carriage decision is entitled to considerable deference.

[29]

The Divisional Court found that the motion judge made no error in law or
    principle and no palpable and overriding error of fact in considering and
    applying the cause of action/claims advanced factor. The motion judge
    considered the viability of the claims and the reasons advanced by the parties.
    He also carefully considered the applicable jurisprudence, including both
Setterington
and
Locking
(discussed later in these reasons). While the motion judge
    criticized
Locking
and stated that the decision was in conflict with
    what he found to be the preferable approach in
Setterington
, he
    applied both cases and reached the same conclusion in doing so.

[30]

The Divisional Court also agreed with the motion judges conclusion that
    the Rochon action was in a more advanced state of preparation and his finding that
    this reflected a sustained and in-depth pattern of research and preparation
    by Rochon, which would further the interests of the class.

[31]

The Divisional Court found that the motion judge articulated and applied
    the correct test. The application of the factors to the circumstances of the
    particular case is an exercise of discretion to which considerable deference is
    owed. Koskies submissions asked the court to reweigh the factors applied by
    the motion judge and did not demonstrate any reversible error in the exercise
    of his discretion. There was no basis on which to set aside the motion judges
    decision.

IV.

Submissions of the parties

A.

Appellants submissions

[32]

Although this is an appeal from the order of the Divisional Court,
    Koskie focussed its submissions on the motion judges alleged errors in
    principle. Koskie submits that the motion judge made four errors in principle.

[33]

First, and foremost, it says the motion judge erred in principle in
    preferring the complex and unworkable claim articulated by Rochon to the
    focused and streamlined theory pleaded by Koskie.

[34]

Second, the motion judge erred by examining the
quality
of Rochons preparation, whereas he ought to have considered the
stage
of preparation. The motion judge was unduly
    impressed that Rochon had taken a trip to Chile to meet with authorities and witnesses.
    Further, in attempting to win carriage, Rochon had disclosed its expert
    reports, contrary to the interests of the class.

[35]

Third, the motion judge failed to give any weight to the fact that
    Koskie had made a favourable third party funding arrangement and erred in
    assuming, without any factual basis, that Rochon would be able to do the same
    in short order.

[36]

Fourth, the motion judge failed to recognize Koskies greater expertise
    in securities class action and to take into account the history of disciplinary
    infractions and judicial criticism of the Merchant Law Group (Merchant), one
    of the members of the Rochon consortium.

B.

Respondents submissions

[37]

Rochon points out that there is no disagreement concerning the
    applicable test, nor with the proposition that a class action judge on a
    carriage motion has a broad discretion in the application of that test. The
    motion judge set out the correct test, identified and weighed the relevant
    factors and his decision is entitled to deference.

[38]

The motion judge made no error, Rochon says, in finding that a more
    comprehensive theory was in the best interests of the class and that, as found
    by the Divisional Court, the trip to Chile was only one of the factors that
    informed the motion judges conclusion that Rochon was better prepared.

[39]

There was evidentiary support for the conclusion that both consortia had
    extensive experience in class actions and securities litigation. The appellants
    position with respect to Merchant is hypocritical, Rochon says, given that
    members of the Koskie consortium had their own history of co-counsel agreements
    with Merchant.

V.

Analysis

[40]

I will discuss these grounds of appeal in order.

(1)

The pleadings and scope of the action

[41]

In my view, this appeal turns on the appellants argument with respect
    to the first
Vitapharm
factor: the nature and scope of the causes of
    action advanced. The appellants put a novel spin on this factor, in three ways.
    First, they say that this factor refers to the workability of the action, a
    term that is not found in any of the authorities. Second, they say that it
    should be given priority over other factors. Third, they say that as a general
    proposition less is more when it comes to the scope of the action and a
    streamlined claim, like Koskies, should be preferred to a more complex claim,
    like Rochons.

[42]

The appellants acknowledge that the merits of the respective claims are
    not at issue on a carriage motion. In
Setterington
, at para. 19,

Winkler
    J., as he then was, said that the claim may be scrutinized for glaring
    deficiencies or to see whether it is fanciful or frivolous. See also:
Sino-Forest
at para. 20. Apart from this, however, he said it is inappropriate for the
    court to embark on an analysis of which claim is most likely to succeed.

[43]

The Divisional Court did not address the issue identified by Nordheimer
    J. on the leave motion, namely the potential conflict identified by the motion
    judge between
Setterington
and the Divisional Court decision in
Locking
.
    The latter case suggested that when the competing actions are similar in strength
    a more detailed and nuanced analysis of the cause of action criteria may be
    required.

[44]

The appellants say that the proper question to ask is not whether one
    claim or the other will succeed, but rather whether the claims are workable.
    They submit that the Rochon claim is overly complex, that it would be costly
    and time-consuming to litigate and that it would eventually collapse under its
    own weight. They say that the motion judge should have analyzed the issue
    following the less is more principle.

[45]

In my view, it is and should be the rule that the court should not enter
    into an examination of the underlying merits of the respective claims on a
    carriage motion.
.
The motion judge gave three good reasons for the
    rule: (i) it is impossible to predict how the litigation will unfold and which
    claims will succeed and which will not; (ii) it is unfair and inappropriate to
    undertake such an analysis in full view of defence counsel; and (iii) a merits
    analysis should not be done on a carriage motion when it is not done on
    certification. I respectfully agree.

[46]

It is also my view, consistent with the jurisprudence, that there may be
    cases in which the actions are sufficiently indistinguishable that, to use the
    language of
Locking
, a more detailed analysis may be necessary: see,
e.g.
,
Sharma
. This analysis will not consider the merits but
    will consider, as the Divisional Court said in
Locking
,

at
    para. 23, the nature and scope of the causes of action advanced and the
    theories advanced by counsel for their approach to the case. This may include
    an assessment of the efficiency and costs of the competing strategies. I regard
    this factor as important, but not necessarily of greater importance than every
    other factor.

[47]

While some cases have given preference to lean actions over more
    comprehensive ones, I would reject any firm rule that less is more or,
    indeed, that more is better. The ultimate question is whether the proposed
    strategy is reasonable and defensible.

[48]

In this case, the motion judge appreciated the argument that the Koskie
    claim was simpler and more focused. But he noted that Rochons capital
    expenditure, accounting and conspiracy claims were viable and supported by the
    evidence. The conspiracy claim added a further basis of liability and,
    significantly, opened up the defendants exposure to damages in excess of the
    statutory limits. It could also help to lift the corporate veil. The conspiracy
    claim and the fraudulent concealment claim had a strong rationale and were
    genuinely viable.

[49]

In my view, this was precisely the kind of analysis that was
    appropriate. It resulted in the motion judge concluding that it was in the best
    interests of the class to plead the broader misrepresentation claims and the
    conspiracy and fraudulent concealment claims, resulting in a more comprehensive
    litigation framework.

[50]

The motion judge considered the appellants argument that their claim
    was more streamlined and ultimately concluded that Rochons viable and
    evidence-based claims provided the class with a more effective framework within
    which to litigate the claims. This was a call he was entitled to make.

(2)

State of preparation

[51]

I agree that in general the focus under this heading is the extent of
    preparation as opposed to the quality of preparation. As Winkler J. observed in
Setterington
,

at para. 22, this factor is relevant to the
    loss of efficiency and unfairness to the defendant if a less advanced action is
    given carriage. Nevertheless, quality of preparation can be a relevant factor.
    Perell J. did not consider it in
Sharma
, because he was unable to
    judge the relative quality of the work of the two firms, noting that it would
    be better assessed in the crucible of battle.

[52]

But since only one firm will go into battle, it is not unreasonable to
    ask which has done the best job in preparing itself for battle and whether its
    preparation has yielded benefits for the class. And this is precisely what the
    motion judge did.

[53]

He found that the Rochon pleading demonstrated a more informed and
    sophisticated understanding of the underlying factual issues than the more
    formalistic Koskie pleading. This was achieved through on-the-ground legal work,
    including retaining one of the leading environmental lawyers in Chile to
    prepare a detailed report, retaining a number of mining and financial experts, and
    going to Chile to meet with legal and government officials, to interview a
    large number of witnesses and to visit the mine site.

[54]

The motion judge found that it was this hands-on effort on the part of
    [Rochon] that best explains the detail and the deep understanding of the
    alleged environmental violations that was evident in Rochons statement of claim.
    The same superior level of understanding was found in Rochons pleading of the
    capital expenditure claim and the accounting claims. The motion judge concluded,
    at para. 48, that Rochon had conducted the more superior investigation and
    analysis of the facts and issues herein and is more prepared than [Koskie] to
    assume carriage of this proceeding forthwith.

[55]

These conclusions are appropriate and supported by the evidence.

[56]

Although not necessary to my conclusions, I will comment on two
    submissions made by counsel for Koskie.

[57]

First, he submits that it was improper for Rochon to produce its expert
    reports for the purpose of demonstrating its superior state of preparation, for
    this put the interests of counsel ahead of the interests of the class. It was
    detrimental to the class because it put their cards on the table in full view
    of the defendants. It appears this occurred in
Sharma
and
Sino-Forest
as well, where one party was more forthcoming in producing its work
    product: see
Sharma
at para. 86;
Sino-Forest
at paras. 24-26.
    Koskie submits that there should be a bright line rule that prevents the
    production of a partys expert evidence on a carriage motion.

[58]

I would not favour such a rule and would leave it to the good judgment
    of counsel and the supervisory jurisdiction of the court to prevent harm to the
    interests of the class.

[59]

Second, Koskie says it is an error in principle to give significant
    weight to events that take place after the carriage motion is scheduled.
    Rochons trip took place after the carriage motion had been scheduled and the
    motion judge should not have considered it.

[60]

The Divisional Court rejected this argument and found that the trip to
    Chile was only part of an ongoing and continuing narrative of preparation that
    began well before the motion was scheduled.

[61]

I would reject a rule that sees carriage motions decided based on a freeze
    frame on the date the motion is filed. For one thing, counsel cannot afford to
    down tools simply because a carriage motion is pending. For another, carriage
    motions can be contemplated in major class action litigation and the date of
    the carriage motion is an artificial one. That said, the court should be
    suspicious of conspicuous new activity after the filing of a carriage motion or
    of any attempts to leapfrog a lagging action ahead of a more advanced one.

(3)

Funding

[62]

Funding is one of the factors identified in
Sino-Forest
. It
    refers to access to external funding to provide indemnity against adverse costs
    awards and, in some cases, funding for disbursements.

[63]

Funding is an important consideration because it goes to the issue of
    whether the class, or, as is usually the case, class counsel, will be able to
    withstand adverse costs awards as the action progresses, or in the event it
    does not succeed at certification, trial or other interlocutory steps such as
    leave or summary judgment. The terms of the funding agreement are also
    important, because the funders fee is typically taken off the top of any
    settlement or judgment, thereby reducing the net available to the class.

[64]

In Ontario, the Class Proceedings Fund provides financing for
    disbursements and indemnity for costs awards in return for a 10 percent share
    of any settlement or judgment and reimbursement of funded disbursements. Funding
    arrangements with commercial third party funders have also been approved:
The
    Trustees of the Labourers Pension Fund of Central and Eastern Canada v.
    Sino-Forest Corporation
, 2012 ONSC 2937;
Dugal v. Manulife Financial
    Corporation
, 2011 ONSC 1785, 105 O.R. (3d) 364;
Rooney v. ArcelorMittal
    S.A
., 2013 ONSC 7768;
Musicians Pension Fund of Canada (Trustees of)
    v. Kinross Gold Corp
., 2013 ONSC 4974, 117 O.R. (3d) 150.

[65]

Koskie had entered into an agreement with a third party funder, Claims
    Funding International, which provided an indemnity against any adverse costs
    award in the action and $50,000 towards counsels disbursements. This was in
    return for a contingency fee of 7 percent, capped at $7 million if the action
    was resolved before the filing of a pre-trial conference brief and $10 million
    if resolved by settlement or judgment thereafter.

[66]

Koskie argued that this arrangement was very favourable because it was
    less than the 10 percent uncapped levy charged by the Class Proceedings Fund. Rochon
    had no funding agreement.

[67]

I agree with the Divisional Court that the motion judge did not err in
    finding that funding was not a significant differentiating factor. Rochons litigation
    plan stated that if granted carriage it would secure a funding arrangement. The
    motion judge expressed no doubt that it would be able to do so in short
    order. In light of his experience and his familiarity with the claim and the
    issues, this was a finding he was entitled to make.

(4)

Counsel

[68]

The appellants submit the motion judge should have engaged in a detailed
    weighing of the resources and expertise of the two counsel groups. They say
    that such an inquiry is mandated by the case law, including
Tiboni
at
    para. 26;
Setterington
at paras 22-24; and
Ricardo v. Air Transat
    A.T. Inc
., [2002] O.J. No. 1090 at para. 28. The appellants argue that if
    the motion judge had engaged in this weighing, he would have given far greater
    weight to his finding that Koskie had greater experience in securities class
    actions. He also would have been more concerned about the absence of evidence
    from the other members of the Rochon consortium, its failure to produce the
    agreement between counsel (including fee-sharing arrangements) and the presence
    of Merchant in the consortium.

[69]

The motion judge observed that any one of the elite class action firms
    who were members of the consortia would have more than enough expertise and
    experience on their own to do an excellent job as carriage counsel. As he
    pointed out, both consortia had added external securities specialists to their teams.

[70]

Like the Divisional Court, I see no error in law or principle nor
    palpable and overriding factual error in the motion judges reasons on this factor.
    They were fully supported by the record. It is not our function to reweigh the
    evidence.

[71]

Neither party filed the agreements between members of the consortia as
    to their fee and work allocation arrangements. Since the fee is ultimately
    borne by class members, the court has an interest in how the work and fees are
    divided. Where appropriate, it is open to the court to require counsel to
    provide evidence as to the allocation of responsibilities and fees between
    members of the consortia. In this case, the appellants have not demonstrated
    that the motion judge erred in the exercise of his discretion by not doing so.

[72]

The court has a duty to protect class members and a broader duty to the
    administration of justice when approving counsel in a carriage motion. The
    discharge of this duty may require the exclusion of counsel due to prior
    misconduct. It may also require the exclusion of counsel with a record of commencing
    class actions, not pursuing them, and then using them to demand ransom from
    other counsel in carriage disputes. The motion judge was clearly aware of these
    duties and of Merchants history and I am not prepared to say that he erred in
    the exercise of his discretion in awarding carriage to Rochon in spite of Merchants
    participation in that consortium.

(5)

The undertaking

[73]

One of the components of the carriage test is whether the outcome is
    fair to the defendant: see
Setterington
at para. 13. Usually, this
    requires a consideration of whether giving carriage to one counsel over another
    would require the defendant to retrace steps already taken in the other
    proceeding. As a result, the defendant has standing on a carriage motion.

[74]

Barrick proposed an innovative and practical solution to the problem of
    overlapping or duplicative class actions. It requested an undertaking from counsel
    on both sides to prevent the continuation or commencement of multiple
    proceedings in Canadian jurisdictions. The parties agreed, and the motion judge
    made an order in the following terms: [Rochon and Koskie] are directed to take
    all necessary steps to permanently stay or dismiss any parallel Canadian
    proceeding that they or their local agents have commenced and not to commence,
    instruct local agents to commence or otherwise permit, facilitate or encourage
    the commencement of any other parallel Canadian proceedings.

[75]

Counsel for Barrick appeared in the Divisional Court to request that the
    undertakings be maintained. Counsel for the competing counsel groups repeated
    their agreement to the undertaking and the Divisional Court ordered that it be
    continued.

[76]

Counsel for Barrick appeared before us to ensure that the undertakings and
    the orders giving effect to them would remain in place. The parties
    acknowledged this was the case.

VI.

Conclusion and order

[77]

For these reasons, I would dismiss the appeal. The undertakings given
    by the parties remain in effect. By agreement between the parties, I would make
    no order as to costs.

G.R. Strathy C.J.O.

I agree S.E. Pepall
    J.A.

I agree D.M. Brown
    J.A.

Released: July 18, 2016


