The recent Federal Court decision in Laliberte v. Canada (Attorney General) marks a milestone as the first reported decision on a contested carriage motion before the Federal Court.
The carriage motion concerned class action claims on behalf of Métis and Non-Status Indians ("NSI") affected by the "Sixties Scoop", a federal program whereby Status Indian, Métis, and NSI children were taken from their parents and placed in non-Indigenous foster homes or put up for adoption.
Representative plaintiffs on behalf of affected Métis and NSI commenced several class actions, including by representative plaintiff Brian Day (the "Day Action") and three other representative plaintiffs – LaLiberte, McComb, and Ouellette – who agreed to consolidate their actions and retain a consortium of counsel (the "LMO Action").
Counsel in the Day Action, Koskie Minsky LLP and Paliare Roland Rosenberg Rothstein LLP (collectively, the "KM/PR Group"), and counsel in the LMO Action, a consortium of Strosberg Sasso Sutts LLP, Klein Lawyers LLP, Aboriginal Law Group, DD West LLP, and Merchant Law Group (collectively, the "Consortium"), both sought carriage of the action and a stay of the other overlapping actions.
Justice Phelan held that the best interests of the class were paramount in determining carriage motions and required application of a flexible multi-factor analysis. In this case, the most relevant factors included the representative quality of the proposed plaintiff; the preparation and readiness of the action; the class definition; scope of causes of action; timing of filing of action; quality, expertise and conduct of counsel; and relevance of class actions in more than one jurisdiction.
Upon application of the multi-factor analysis, Justice Phelan awarded carriage of the class action to the KM/PR Group, staying the competing actions led by the Consortium, and creating precedent for future carriage motions before the Federal Court.