As we have written, British Columbia is becoming an ever more popular jurisdiction for class actions. In turn, carriage battles among putative class counsel are becoming more common. Moiseiwitsch v. Canadian National Railway Company and Canadian Pacific Railway Company, 2022 BCSC 331 is the most recent comprehensive carriage decision in British Columbia and raises several interesting issues.
Two proposed class actions were filed for damages caused by a wildfire: Moiseiwitsch and O’Connor: Moiseiwitsch was filed first and set for a certification hearing in October 2022, but named only two defendants. No certification hearing had been scheduled in O’Connor, but O’Connor included a variety of additional defendants, including the federal government.
To award carriage, the court considered the Ewert factors, many of which were neutral. But the court’s treatment of many factors—even some of the neutral factors—is notable:
- Quality of the Proposed Representative Plaintiffs: The court found a modest advantage for the O’Connor action because one of the two proposed representative plaintiffs was a member of a community affected by the fire, which increased the representativeness of the class.
- Funding and Fee and Consortium Agreements: The court found that these factors were neutral because differences would be eliminated. Counsel in both actions agreed to match each other on disbursement funding and the court was prepared to limit the fee agreement in Moiseiwitsch to the lower percentages in O’Connor.
- Disqualifying Conflicts of Interest: The court raised the potential for a conflict of interest with co-counsel in Moiseiwitsch, who was also a class member. After he resigned, this factor was neutral.
- Preparation and Readiness: The court found Moiseiwitsch action’s readiness for certification in October 2022 weighed significantly in its favour given the comparative lack of progress in O’Connor.
- Case Theory: The court found this factor significantly favoured O’Connor because of its additional defendants.
- Selection of Defendants: The court found this factor also significantly favoured O’Connor, largely because the court concluded that the claim against the defendants named in O’Connor but not Moiseiwitsch—particularly the federal government—raised complex issues and were not unnecessary as counsel in Moiseiwitsch
Ultimately, the court granted carriage to O’Connor. The decisive factors were (i) preparation and readiness (which the court found favoured Moiseiwitsch) and (ii) case theory and selection of defendants (which the court found both favoured O’Connor). The court held that O’Connor could catch up to Moiseiwitsch in terms of preparation and readiness but that Moiseiwitsch could not overcome difficulties on case theory and selection of defendants.
An appeal is pending, which may lead to significant appellate commentary on carriage issues. McCarthy Tétrault LLP is counsel for one of the defendant railway companies in Moiseiwitsch and O’Connor.