COURT FILE NO.: CV-17-579622-00CP COURT FILE NO.: CV-17-580007-00CP DATE: 2018-03-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT QUENNEVILLE, FRANCESCO VELLA, KWAI-YUEN TSO, ALAN ORMAN Plaintiffs

– and –

AUDI AG, AUDI OF AMERICA LLC, AUDI CANADA INC., BAYERISCHE MOTOREN WERKE AG, BMW NORTH AMERICA, LLC, BMW CANADA INC., DAIMLER AG, MERCEDES-BENZ USA, LLC, MERCEDES-BENZ CANADA INC., MERCEDES-BENZ FINANCIAL SERVICES CANADA CORPORATION, DR. ING. H.C. F. PORSCHE AG, PORSCHE CARS NORTH AMERICA, PORSCHE CARS CANADA, LTD., PORSCHE FINANCIAL SERVICES CANADA, VOLKSWAGEN AG, VOLKSWAGEN GROUP OF AMERICA, INC., VOLKSWAGEN GROUP CANADA INC., VW CREDIT CANADA, INC. Defendants

Proceeding under the Class Proceedings Act, 1992

AND BETWEEN:

ROBERT STIBBE Plaintiff

– and –

AUDI CANADA INC., AUDI AKTIENGESELLSCHAFT, BMW CANADA INC., BMW AKTIENGESELLSCHAFT, MERCEDES-BENZ CANADA INC., DAIMLER AKTIENGESELLSCHAFT, VOLKSWAGEN GROUP CANADA INC., VOLKSWAGEN AKTIENGESELLSCHAFT, PORSCHE CARS CANADA LTD., ROBERT BOSCH GmbH and DR. ING H.C. F. PORSCHE AKTIENGESELLSCHAFT Defendants

Proceeding under the Class Proceedings Act, 1992

David R. Wingfield and Jonathan Foreman for the Plaintiffs Kenneth Rosenberg, Ren Bucholz and James Sayce for the Plaintiff

HEARD: February 16, 2018

PERELL, J.

REASONS FOR DECISION

“He who represents himself has a fool for a client.” [Abraham Lincoln]

A. Prologue

[1] Pursuant to the Class Proceedings Act, 1992,[^1] this is a carriage motion between two consortiums of proposed Class Counsel.

[2] Without describing the testimony and self-reverent testimonials of the immediate case, save to say that they were not a pleasure to read, but I did not ignore them, in my opinion, the current practice on carriage motions, which turns a carriage motion into a blood sport of lawyer-bashing, is gross and not helpful.

[3] Unfortunately, it has become conventional in a carriage motion for the rival Class Counsel to extol their own virtues and to badmouth their rival. I agree with the observation of Harrison Pensa LLP and Strosberg Sasso Sutts LLP in their factum in the immediate case that carriage motions can reflect poorly on the perception of class actions and Class Counsel within the legal system and beyond.

[4] In future, I suggest that a law firm seeking carriage should hire independent counsel to argue the motion and thus introduce an element or at least the appearance of some objectivity.

B. Introduction

[5] In the summer of 2017, pursuant to the Class Proceedings Act, 1992, Robert Quenneville, Francesco Vella, Kwai-Yuen Tso, and Alan Orman commenced a proposed competition law class action. Their action was brought on behalf of the following class: “All persons resident in Canada who purchased or leased a new automobile in Canada manufactured by one or more of the Defendants during the Class Period [i.e., “the period from and after the date the Conspiracy began, being as early as 1990”].

[6] The Defendants are: Audi AG, Audi of America LLC, and Audi Canada Inc. (collectively “Audi^x3”); Bayerische Motoren Werke AG, BMW North America, LLC, and BMW Canada Inc. (collectively “BMW^x3”); Daimler AG, Mercedes-Benz USA, LLC, Mercedes-Benz Canada Inc., and Mercedes-Benz Financial Services Canada Corporation (collectively “Daimler^x4”); Dr. Ing. H.C. F. Porsche AG, Porsche Cars North America, Porsche Cars Canada, Ltd., and Porsche Financial Services Canada (collectively, “Porsche^x4”); and Volkswagen AG, Volkswagen Group of America, Inc., Volkswagen Group Canada Inc., and VW Credit Canada, Inc. (collectively “Volkswagen^x4”).

[7] Messrs. Quenneville, Vella, Tso, and Orman retained Harrison Pensa LLP and Strosberg Sasso Sutts LLP as proposed Class Counsel.

[8] In the summer of 2017, Robert Stibbe, and then Kate O'Leary-Swinkels, and Soheil Kafai commenced proposed competition law class action(s). Their action(s) were brought on behalf of the following class: “all persons in Canada, except for Excluded Persons, who own, owned, lease or leased one of the Vehicles.” The class definition in the Stibbe action is broader than the definition in the Quenneville action, because it includes not only new car purchasers but also used car purchasers. The class period begins at least as early as January 1, 1995 and continues until at least December 31, 2014.

[9] The Defendants are Audi Canada Inc. and Audi Aktiengesellschaft (collectively “Audi^x2”); BMW Canada Inc. and BMW Aktiengesellschaft (collectively “BMW^x2”); Robert Bosch GmbH (“Bosch”); Mercedes-Benz Canada Inc. and Daimler Aktiengesellschaft (collectively “Daimler^x2”); Porsche Cars Canada Ltd. and Dr. Ing. H.C. F. Porsche Aktiengesellschaft (collectively “Porsche^x2”); and Volkswagen Group Canada Inc. and Volkswagen Aktiengesellschaft (collectively Volkswagen^x2).

[10] Mr. Stibbe, Ms. O’Leary-Swinkels, and Mr. Kafai retained Koskie Minsky LLP, Paliare Roland Rosenberg Rothstein LLP, and Siskinds LLP as proposed Class Counsel.

[11] It may be noted that the German parent corporations and their Canadian subsidiaries are parties in both actions, but that the Quenneville action also joins the Canadian financing subsidiaries and the American subsidiaries of the German corporations. The Stibbe action names Bosch GmbH, a parts manufacturer, while the Quenneville action does not name Bosch.

[12] Thus, this is a carriage motion to determine which consortium of firms is to have carriage of the proposed class action: (a) against Audi^x3, BMW^x3, Daimler^x4, Porsche^x4, and Volkswagen^x4; or (b) againstAudi^x2, BMW^x2, Bosch, Daimler^x2, Porsche^x2, and Volkswagen^x2.

C. Overview

[13] For the reasons that follow, I grant carriage to Class Counsel in the Quenneville action.

[14] Below, I will describe the factual and legal background to the underlying claim against the German car manufacturers and to the carriage motion itself, and I shall compare and contrast the two proposed actions in accordance with the numerous criteria or factors used to determine such motions. The discussion and analysis of the carriage fight will reveal a host of clichés and mixed metaphors, including a photo finish. I will have some comments and suggestions about this carriage motion and about future carriage motions.

[15] To understand why I do not grant carriage to Class Counsel in the Stibbe action, it is helpful at the outset of these Reasons for Decision to understand where the rival Class Counsel agree and where they disagree about the fundamentals of their respective competition law class actions against the German car manufacturers.

[16] Both proposed Class Counsel agree that the case against the German car manufacturers is not a conventional price-fixing case under the Competition Act.[^2] In a conventional price-fixing case, the co-conspirator defendants co-operate and fix prices, and this type of conspiratorial cooperation is undoubtedly anti-competitive. However, it is not the situation that all forms of cooperation are anti-competitive, and in the respective class actions, both Class Counsel agree that while the case at bar is not a conventional price-fixing case, it is, nevertheless, a case in which the cooperative conduct of the defendants is not of the innocent type of cooperation but rather is of the illegal type of cooperation.

[17] Thus, both Class Counsel agree that the case at bar is of the illegal type of cooperation, and they also agree that proving the illegal type of cooperation will be challenging because of the enormous length, breadth, and height of the factual footprint of an almost 30-year conspiracy and because of the challenge of proving that the cooperation moved from the innocent to the criminal territory of a contravention of the Competition Act and of the equally difficult challenge of proving the extent, if any, of the damage caused by the co-conspirators to Canadian consumers.

[18] Thus, both Class Counsel agree with the European Commissioner for Competition, who is leading the regulatory investigation in Europe, and who recognized the difficulty of differentiating between innocent and culpable cooperation. The Commissioner stated:

[It] can take years for there to be a final decision in such cases…there were countless working groups over so many years. When did they stand on the solid ground of permitted collaboration? And when did they drift into possibly illegal collusion? It is a difficult question to answer. Competition law, after all, doesn't prohibit all forms of corporation. There are a lot of good reasons for collaboration.

[19] Where both Class Counsel disagree is on the matter of whether their respective litigation plans hit the targets of proving illegal cooperation and consequential damages to the Class Members. Both Class Counsel vehemently submit that their rival’s litigation plan and theory of the case either are off-target entirely or hit only the outer ring of the targets. Both Class Counsel are enthusiastic and eager to win carriage, and they passionately submit that their own plan not only hits the targets but hits the bullseye.

[20] As I shall explain below, my own analysis is that the litigation plans of both Class Counsel are on target and both present viable case theories and litigation plans. Both Class Counsel score well enough on the other factors used to determine carriage or the other factors are neutral or of minimal importance.

[21] Thus, to mix carriage fight metaphors, neither Class Counsel scores a knockout blow on any of the factors used to determine carriage. With respect to the long list of factors, there is little to choose from as between Class Counsel. What ultimately tips the balance, to further mix metaphors, is that I conclude that the litigation plan and the case theory for the Quenneville action are a photo finish better than those of the Stibbe action.

[22] The Quenneville action can be further improved by the lessons learned from this carriage fight.

D. The Test for Carriage

[23] The Class Proceedings Act, 1992, confers upon the court a broad discretion to manage the proceedings. Section 13 of the Act authorizes the court to "stay any proceeding related to the class proceeding," and s. 12 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 138 of the Courts of Justice Act,[^3] directs that "as far as possible, multiplicity of legal proceedings shall be avoided."

[24] Where two or more class proceedings are brought with respect to the same subject-matter, a proposed Representative Plaintiff in one action may bring a carriage motion to stay all other present or future class proceedings relating to the same subject-matter.[^4] There should not be two or more class actions that proceed in respect of the same putative class asserting the same cause(s) of action, and one action must be selected.[^5]

[25] The court will grant carriage to the putative Class Counsel whose proposed action is better for the interests of the putative Class Members while being fair to the defendants and promoting the prime objectives of class proceedings, which are access to justice for plaintiffs, class members, and defendants, behaviour modification, and judicial economy.[^6] Although the determination of a carriage motion will decide which counsel will represent the plaintiff, the task of the court is not to choose between different counsel according to their relative resources and expertise; rather, it is to determine which of the competing actions is more, or most, likely to advance the interests of the class.[^7]

[26] Where there is a competition for carriage of a class proceeding, the circumstance that one competitor joins more defendants is not determinative; rather, what is important is the rationale for the joinder and whether or not it is advantageous for the class to join the additional defendants.[^8]

[27] Courts generally consider a list of overlapping and non-exhaustive factors in determining which action should proceed; including:[^9] (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) Case Theory; (9) Scope of Causes of Action; (10) Selection of Defendants; (11) Correlation of Plaintiffs and Defendants; (12) Class Definition; (13) Class Period; (14) Prospect of Success: (Leave and) Certification; (15) Prospect of Success against the Defendants; and (16) Interrelationship of Class Actions in more than one Jurisdiction. To this list of sixteen factors, I shall add another factor; namely (7.1) Preparation and Performance on Carriage Motion.

[28] It is useful to note that: factors (1) to (3) concern the qualifications of the proposed Representative Plaintiffs; factors (4)-(7.1) concern the qualifications of the proposed Class Counsel; and factors (8) to (16) concern the quality of the litigation plan for the proposed class action. Thus, seven of the factors are about or are connected to case theory, which is understandable, because at the very heart of the test for determining carriage is a qualitative and comparative analysis of the case theories of the rival Class Counsel.[^10]

E. The Alleged Audi, BMW, Daimler, Porsche, and Volkswagen Anti-Competition Conspiracy

[29] In July 2017, Der Spiegel, a German newspaper, published a lengthy and detailed article alleging that Audi, BMW, Daimler, Porsche, and Volkswagen had engaged in anti-competitive conduct relating to automotive design, development, manufacturing, and marketing, from as early as 1990 and continuing into 2016.

[30] The article suggested that the five manufacturers’ collaborations contravened and constituted illegal anti-competitive behaviour. The article revealed that since approximately 1990, representatives of these German automakers had met hundreds of times to implement an anti-competitive scheme. It was alleged that using working groups, the five competitors were colluding and unlawfully reducing competition to secure an unfair advantage over their non-German competitors. The article revealed that the five manufacturers had set up more than 60 working groups of development experts that had thousands of meetings in Stuttgart, Munich, Ingolstadt, Wolfsburg, Geneva, Frankfurt, and Paris. For these meetings, automobile development experts were assigned to working groups classified according to engine, car body, chassis, electric/electronic, and total vehicle. Requests by Jaguar, Volvo, Renault and Fiat to participate in the groups had been refused.

[31] The article suggested that although the five manufacturers had not directly conspired to fix the prices for their luxury vehicles, they had collaborated on design, development, engineering, and marketing, and through their collaboration, they had operated like a monopoly allowing them to charge higher prices than would have been the case had they been competing.

[32] In a brief dated July 4, 2016 submitted to the German Federal Cartel Office and the European Commission, Volkswagen admitted to participating in a cartel. Audi, Daimler, and Porsche also admitted to participating in the cartel.

[33] Following the Der Spiegel article, further news reports revealed that European Union anti-trust authorities conducted raids on the German offices of BMW, Daimler, and Volkswagen in the fall of 2017 and that BMW was conducting an internal investigation into the cartel investigations.

F. The Progress of the Competing Class Actions

[34] Following the publication of the Der Spiegel article, Mr. Quenneville, the owner of a Volkswagen, retained Strosberg Sasso Sutts LLP to bring a competition law class action against the five German car manufacturers, and on July 25, 2017, a Notice of Action was issued.

[35] Following the publication of the Der Spiegel article, Mr. Stibbe retained Koskie Minsky LLP and Paliare Roland Rosenberg Rothstein LLP to bring a competition law class action against the five German car manufacturers, and on August 1, 2017, a Notice of Action was issued. There also was a press release.

[36] On August 1, 2017, Jay Strosberg of Strosberg Sasso Sutts LLP sent Kirk Baert of Koskie Minsky LLP an email message and left a voicemail suggesting a consortium to prosecute the class action against the Defendants.

[37] On August 10, 2017, Justice Belobaba was designated as the case management judge for the Quenneville action and subsequently he was designated as case management judge for the Stibbe action. (Justice Belobaba is currently on medical leave and that is why I am hearing this carriage motion.)

[38] Following the publication of the Der Spiegel article, Soheil Kafai and Kate O’Leary-Swinkel retained Siskinds LLP to bring a competition law class action against the five German car manufacturers, and on August 21, 2017, they filed a Statement of Claim.

[39] On August 31, 2017, Mr. Stibbe filed his Statement of Claim.

[40] On September 6, 2017, Mr. Quenneville filed a fresh Notice of Action and a Statement of Claim.

[41] On September 14, 2017, James Sayce, a lawyer with Koskie Minsky LLP, emailed Mr. Strosberg with a proposed consortium agreement in which Koskie Minsky LLP and Poliare Roland Rosenberg Rothstein LLP would be co-lead counsel and the division of fees would be: (a) 90%, Koskie Minsky LLP and Paliare Roland Rosenberg Rothstein LLP; (b) 5%, Siskinds LLP and (c) 5%, Strosberg Sasso Sutts LLP and Harrison Pensa LLP.

[42] On November 21, 2017, Mr. Strosberg wrote to Messrs. Baert, Rosenberg, and also Charles Wright at Siskinds LLP with a proposed consortium agreement in which all of the firms would be treated equally in terms of taking responsibility for the prosecution of the case and with respect to the division of any fees in the event that the case was successful.

[43] On November 23, 2017, Mr. Sayce delivered a revised proposed Consortium Agreement in which Strosberg Sasso Sutts LLP’s, Harrison Pensa LLP’s and Siskinds LLP’s share of the fee would be a variable with a minimum of 7.5%, and the Koskie Minsky LLP fee would be a variable of 43.75% and Paliare Roland Rosenberg Rothstein LLP would be a variable to a maximum of 43.75%. The variable was the amount of time engaged on the matter.

[44] Class Counsel could not agree on a consortium agreement, and hence each brought a carriage motion.

[45] In December 2017, for the purposes of the carriage motion, Mr. Stibbe produced a draft Amended Statement of Claim.

[46] On December 8, 2017, the Quenneville Plaintiffs and the Stibbe Plaintiffs respectively served their motion record for the carriage motion.

[47] In both actions, Class Counsel have engaged European law firms and hired European private investigators. In both actions, Class Counsel have retained: damages methodology experts; automotive industry experts; and mechanical engineering experts. In the Quenneville action, Class Counsel retained an expert in German financial information, and in the Stibbe action, Class Counsel retained an expert in cultural branding.

[48] On January 4, 2018, the Quenneville Plaintiffs delivered their certification motion record. The certification record contains publicly-available documents, the majority of which also appear in both carriage records. The only new item is a damages expert report of Dr. E. Allen Jacobs that sets out a methodology for determining whether members of the proposed class suffered a common impact and for determining the calculation of damages on a class-wide basis.

[49] To foreshadow the discussion below under the heading “Preparation and Readiness of the Action,” I simply note here that the Stibbe Class Counsel object to the filing of the certification record as tactical posturing in the carriage fight, and they are highly critical of the worth of Dr. Jacobs’ report.

[50] Mr. Strosberg was cross-examined on his affidavit delivered for the carriage motion. During his cross-examination, he refused to answer questions with respect to Quenneville Class Counsel’s investigations about the factual underpinnings of the Quenneville Plaintiffs’ allegations of misconduct by the Defendants.

[51] There were no cross-examinations of the affiants for the Stibbe carriage motion. The Stibbe Plaintiffs, unlike, the Quenneville Plaintiffs have not yet delivered a certification record, and they submit that as a matter of policy, with which I agree, a certification record should not be delivered before carriage of a class action is resolved.

G. The Competition Law Claims

1. Legal Background to the Competition Law Claims

[52] Competition law class actions are possible because s. 36(1) of the Competition Act provides a statutory cause of action to recover damages for any person who has suffered loss or damage as a result of conduct that is contrary to any provision of Part VI of the Competition Act. Thus, a Representative Plaintiff in a proposed class action needs a case in which he or she has suffered damages and in which he or she can prove that the defendant committed one or more of the offences found in Part VI of the Act. It should be noted that the offences under the Act each have different constituent elements.

[53] The Quenneville action is brought under sections 36(1), 45(1), 46(1), and 52 of the Competition Act. Section 45(1) was amended in 2009,[^11] and thus the Quenneville action is brought under both versions of s. 45(1), which have different constituent elements.

[54] The differences in the versions of s. 45 means that while the underlying facts will be the same, the elements that must be pleaded in an action based on both versions of s. 45 must accommodate both versions of the section.[^12]

[55] Section 52 is the criminal version of s. 74 (Deceptive Marketing Practices), which is a civilly reviewable matter by the Commissioner. The purpose of s. 52 is prevent the harm to competition caused by deceiving consumers to choose inferior products at higher prices over the superior products of an honest firm.[^13]

[56] In addition to the causes of action under the Competition Act, the Plaintiffs in the Quenneville action advance causes of action for common law conspiracy, unjust enrichment, and waiver of tort. There is a claim for punitive damages. A plea is also advanced seeking the imposition of a constructive trust as a consequence of the Defendants’ participation in the alleged conspiracy.

[57] The Stibbe action is brought under sections 36(1), 45(1) (both versions) and 46(1) of the Competition Act. In addition to the causes of action under the Competition Act, the Plaintiffs in the Stibbe action advance causes of common law conspiracy and waiver of tort. There is a claim for punitive damages.

[58] Both the Plaintiffs in the Quenneville action and also the Plaintiffs in the Stibbe action rely on s. 46 of the Competition Act. The purpose of this section is to permit a case to be brought against a corporation carrying on business in Canada that participates in a foreign conspiracy in breach of s. 45 even if the corporation or its directors or officers were unaware of the conspiracy.

[59] The relevant provisions of the Competition Act are set out below:

Recovery of damages

36(1) Any person who has suffered loss or damage as a result of

(a) conduct that is contrary to any provision of Part VI, or

(b) the failure of any person to comply with an order of the Tribunal or another court under this Act,

may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section.

Limitation

(4) No action may be brought under subsection (1),

(a) in the case of an action based on conduct that is contrary to any provision of Part VI, after two years from

(i) a day on which the conduct was engaged in, or

(ii) the day on which any criminal proceedings relating thereto were finally disposed of,

whichever is the later; and

(b) in the case of an action based on the failure of any person to comply with an order of the Tribunal or another court, after two years from

(i) a day on which the order of the Tribunal or court was contravened, or

(ii) the day on which any criminal proceedings relating thereto were finally disposed of,

whichever is the later.

Former s. 45(1)

Current s. 45(1)

45(1) Every one who conspires, combines, agrees or arranges with another person

(a) to limit unduly the facilities for transporting, producing, manufacturing, supplying, storing or dealing in any product,

(b) to prevent, limit or lessen, unduly, the manufacture or production of a product or to enhance unreasonably the price thereof,

(c) to prevent or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance on persons or property, or

(d) to otherwise restrain or injure competition unduly,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million dollars or to both.

45(1) Every person commits an offence who, with a competitor of that person with respect to a product, conspires, agrees or arranges

(a) to fix, maintain, increase or control the price for the supply of the product;

(b) to allocate sales, territories, customers or markets for the production or supply of the product; or

(c) to fix, maintain, control, prevent, lessen or eliminate the production or supply of the product.

46(1) Any corporation, wherever incorporated, that carries on business in Canada and that implements, in whole or in part in Canada, a directive, instruction, intimation of policy or other communication to the corporation or any person from a person in a country other than Canada who is in a position to direct or influence the policies of the corporation, which communication is for the purpose of giving effect to a conspiracy, combination, agreement or arrangement entered into outside Canada that, if entered into in Canada, would have been in contravention of section 45, is, whether or not any director or officer of the corporation in Canada has knowledge of the conspiracy, combination, agreement or arrangement, guilty of an indictable offence and liable on conviction to a fine in the discretion of the court.

52. No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.

2. The Pleaded Claims

[60] The case theory and litigation plan in the Quenneville action posits that this is not a conventional price-fixing case but that the Defendants’ cooperation had the effect of: eliminating product and brand differentiation; retarding competitive innovation and quality enhancements; reducing competition over market share; and causing damage to Canadian purchasers who paid more for their new vehicles than would have been the case had there been genuine competition.

[61] The Quenneville Plaintiffs allege that the Defendants colluded on the development of the “proprietary vehicle platforms” of their vehicles. The Quenneville action alleges that the Defendants conspired to avoid any direct comparisons between the engineering, technology and performance characteristics of their vehicles. The Quenneville Plaintiffs allege that the cooperation of the Defendants allowed them to function as a single economic entity that did not compete in the automobile markets around the world and that the cooperation was a means of output restriction that was detrimental to consumers. The Quenneville action alleges illegal conduct in Europe and in North America, where the Canadian subsidiaries were under the control of the American subsidiaries. The Quenneville Plaintiffs say that the result is that the Defendants’ anti-competitive cooperation had the same detrimental effect as would be achieved by a conventional price-fixing conspiracy.

[62] The Quenneville Plaintiffs submit that the cooperation of the Defendants constitutes contraventions of s. 46 and s. 45(1) of the old and new versions of the Competition Act. And they submit that the culpable cooperation of the Defendants is also and independently a contravention of s. 52 of the Competition Act, which is designed to criminalize false or misleading representations, which in this case would have affected product demand to the detriment of product pricing.

[63] Foreshadowing the discussion later in these Reasons for Decision, Stibbe Class Counsel criticize the Quenneville Plaintiffs’ case theory and litigation plan for the following reasons. Quenneville’s case theory is unfocused, speculative, untested, expensive, risky, and the misrepresentation claim based on a contravention of s. 52 is not legally or factually viable, and if viable, the s. 52 claim is redundant and an unnecessary complication.

[64] Stibbe Class Counsel submit that the Quenneville Plaintiffs make claims that are unverifiable and unwieldy and that the misrepresentation claim is deficient for a failure to plead reliance, and, in any event, as an issue, reliance presents enormous problems for class proceedings, because it would not be certifiable as a common issue and a reliance element to a claim has adverse consequences to whether the preferable procedure criterion can be satisfied. Stibbe Class Counsel submit that the s. 52 claim is likely to be challenged as not showing a reasonable cause of action for the failure to plead reliance, which is an unsolvable problem because it would not be possible to plead reliance in the circumstances of this case, as the vague advertising misrepresentations, either express or by omission, could never be relied upon by a reasonable person.

[65] Stibbe Class Counsel submit that taking on additional claims that will be difficult or impossible to prove, and that will strain the forensic resources of the plaintiffs is undesirable. They submit that the Class Members should not be saddled with a case that requires three times the resources and time for the same potential outcome.

[66] In contrast to the Quenneville Plaintiffs’ case theory, the case theory and litigation plan in the Stibbe action focuses on the Defendants’ conduct in Europe and recognizes that those activities do not constitute a conventional price-fixing case. Stibbe Class Counsel submit that their draft Statement of Claim is a prudent and precise pleading that is based on what is presently known about the activities of the Defendants in Europe. They submit that there is no known factual basis to expand their claim to activities in North America. The Stibbe Plaintiffs submit that their Statement of Claim is nuanced and sophisticated and recognizes the distinction between cooperation that is innocent and cooperation that is an offence under the Competition Act.

[67] The Stibbe Plaintiffs join Bosch, an automobile parts manufacturer, as a Defendant because it was involved in the development, design and calibration of emissions control systems for Audi, Porsche, and Volkswagen automobiles.

[68] Foreshadowing the discussion later in these Reasons for Decision, the Quenneville Class Counsel criticize the Stibbe Plaintiffs’ case theory and litigation plan for the following reasons. They submit that the Stibbe action is a boilerplate price-fixing claim that does not reflect the pattern of anti-competitive conduct that is actually alleged to have occurred among the Defendants; namely: output restriction, restraint on innovation, market share manipulation and marketing collusion in pursuit of monopoly profits. Quenneville Class Counsel submit that the Stibbe Plaintiffs rely on a theory that is far too narrow for the competition law problem that is before the Court. And the Quenneville Class Counsel submit that the Stibbe Plaintiffs have failed to properly plead and particularize necessary elements of both versions of s. 45(1).

[69] Further, Quenneville Class Counsel submit that the Stibbe Plaintiffs fail to address the role deceptive marketing plays in the alleged conspiracy and entirely miss the claim based on a contravention of s. 52 of the Competition Act. Further still, Quenneville Class Counsel submit that because the Stibbe Plaintiffs are fixated on price-fixing, they don’t understand a theory of damages that: (i) is rooted in illegal anti-competitive conduct; (ii) does not involve price-fixing, and (iii) does involve an unlawful reduction in various dimensions of competition that affect output, price and consumer demand, which is the kind of theory that is required for the case at bar.

H. The Qualifications of the Proposed Representative Plaintiffs

[70] In degree of importance, the factor of the qualifications of the proposed Representative Plaintiffs, is usually of minor importance in a competition law case.

[71] It is an acknowledged and unobjectionable fact of the entrepreneurial class action regime that Class Counsel often recruit their clients. Recruited or not, these clients are real clients with real responsibilities. It falls on the Representative Plaintiffs (for no consideration apart from the slight prospect of a modest honorarium) to oversee and instruct Class Counsel on behalf of their fellow Class Members. In the immediate case, both the Quenneville Plaintiffs and the Stibbe Plaintiffs appear to be genuine and suitable Representative Plaintiffs.

[72] In most, but not necessarily all, cases, Class Counsel should ensure that the Representative Plaintiff is protected from an adverse costs award either: (a) by Class Counsel agreeing to indemnify the Representative Plaintiff for taking on the litigation risk; or (b) by Class Counsel arranging third-party funding that protects the Representative Plaintiff.

[73] Class Counsel in the Quenneville action has secured a third-party funding arrangement conditional on court approval and on carriage being awarded to the Quenneville action. Class Counsel in the Stibbe action have applied for third-party funding from the Class Proceedings Fund. For present purposes, I shall assume that suitable arrangements will be made to protect the proposed Representative Plaintiffs in both actions.

[74] In Mancinelli v. Barrick Gold Corp.,[^14] Chief Justice Strathy stated that the proposed fee agreement is a factor that affects the interests of the class and if significant differences exist between fee arrangements, it may be relevant on a carriage motion.

[75] In the Quenneville Action the fee agreements provide for a contingency fee of 20% if the action is resolved before discoveries, and 30% if resolved at a later stage. In the Stibbe action, Mr. Stibbe’s fee agreement and Mr. Kafai’s and Ms. O’Leary-Swinkels fee agreements have not yet been rationalized under the consortium agreements of Class Counsel. Mr. Stibbe has agreed to a contingency fee of 33⅓%, Mr. Kafai and Ms. O’Leary-Swinkels have agreed to a contingency fee that escalates from 25% to 30%.

[76] Keeping in mind that ultimately the court approves Class Counsel’s fee and that it ultimately falls on the court to determine whether and to what extent Class Counsel is entitled to any percentage of the recovery, I do not see significant differences between the contingency fee agreements in the case at bar.

[77] Thus, in the case at bar, the qualifications of the proposed Representative Plaintiffs is of no importance as there is no basis to favour one set of Representative Plaintiffs over the other based on this factor.

I. The Qualifications of the Proposed Class Counsel

1. The Quality of Proposed Class Counsel

[78] In a carriage fight, the factor of the quality of proposed class function has become dysfunctional. A carriage motion is not to be a “beauty pageant,”[^15] and usually the resources and experience of counsel will be neutral and unhelpful to the carriage determination because any of the law firms could represent Class Members in the proposed class action.[^16]

[79] Rarely will the quality of proposed Class Counsel be a significant factor on a carriage motion. Even in cases involving economic theory, there is no monopoly on the skill set of competence required to be a Class Counsel. Advocates are generalists, as lawyers they are in an profession of lifelong learning, and their speciality is advocacy, and a lawyer or law firm competent to act in a complex litigation for a single plaintiff does not become incompetent and unqualified when that single plaintiff happens to be a Representative Plaintiff in a class action.

[80] In future carriage motions, unless challenged by the rival, the quality of counsel should not be made an issue, and the court should not be placed in the uncomfortable position of grading the lawyers making an appearance. Recently, in Agnew-Americano v. Equifax Canada,[^17] Justice Glustein stated that if there is evidence before the court as to relevant differences in experience between proposed counsel for the litigation, it would be an error of law to ignore such a difference. It is always an error of law to ignore relevant evidence, and the evidence was certainly relevant in that case, but my points are that typically the differences in experience between the rival lawyers will not be relevant and that both Class Counsel should not instigate a beauty pageant or a cockfight.

[81] In future carriage motions, I would recommend that in a moving party’s motion record, the proposed Class Counsel may include the law firm’s brochure and the short curriculums vitae of the lawyers who will have responsibility for the proposed class action. Only if the firm’s or the lawyer’s qualifications are challenged in the responding materials should additional material be filed in reply.

[82] In the Quenneville action, the lawyers responsible for the proposed class action are, in alphabetical order: Nicholas Cartel, Jonathan Foreman, Genevieve Graham, Patricia Speight, Jay Strosberg, David Williams, and David Wingfield.

[83] In the Stibbe action, the lawyers responsible for the proposed class action, in alphabetical order, are: Kirk Baert, Ren Bucholz, Paul Davis, Ronald Podolny, Kenneth Rosenberg, James Sayce, Linda Visser, and Charles Wright.

[84] These are all fine lawyers with the skill sets and experience to do well for themselves, the Representative Plaintiffs, and the Class Members.

[85] The quality of proposed Class Counsel is not a meaningful factor in the immediate carriage fight.

2. Disqualifying Conflicts of Interest

[86] There are no apparent disqualifying conflicts of interest, and thus this factor is not important in the immediate case.

3. Relative Priority of Commencement of the Action

[87] While disavowing that they are seeking to introduce the approach in Québec, where the courts with little discretion must award carriage to the first law firm to commence the proposed class action, Quenneville Class Counsel submit that carriage fights should be discouraged by an approach that would privilege the first filing by assessing with heightened scrutiny what is the utility of the second filing to the class. Quenneville Class Counsel submit that the court should, as matter of policy, focus on the reasons why the subsequent filing has been made. In the immediate case, Quenneville Class Counsel submit that they diligently investigated and filed a well-articulated pleading and that the subsequent filings had poor utility.

[88] In the immediate case, the competing class actions were close enough to being simultaneously filed, and, therefore, the policy proposed by Quenneville Class Counsel would not apply even if it were adopted as good policy, which it is not.

[89] Carriage fights were envisioned by the legislators when they enacted s. 13 of the Class Proceedings Act, 1992. These motions are sometimes necessary, and there should not be a policy to discourage them and the gardening and weeding they accomplish.

[90] However, for what it is worth, my opinion is that there should be some trimming to carriage motions. It would be a good policy to introduce some proportionality to certification motions. For instance, they might be reduced to three questions; namely: (1) Are there any circumstances that should absolutely disqualify the Representative Plaintiff or the proposed Class Counsel? For example: demonstrated incompetence; demonstrated disinterest or dereliction of responsibility; demonstrated poaching or pilfering; demonstrable conflicts of interests; demonstrated inability to fund the costs of litigation; or a fatally flawed case theory; (2) What is the single most important factor to be weighed in the particular circumstances of the carriage motion? and, (3) Which team of Representative Plaintiff and Class Counsel is better in satisfying that most important factor?

[91] In any event, the relative priority of the commencement of the action is not a meaningful factor in the case at bar.

4. Preparation and Readiness of the Action

[92] Consistent with their loathing of carriage motions, Quenneville Class Counsel submit that carriage motions should be discouraged as a general policy matter and that cases with a strong theory which are demonstrably ready to proceed should be preferred over subsequent filings by competing counsel that do not demonstrate the same degree of committed readiness and preparation - i.e., the Stibbe Plaintiffs’ case. Thus, Quenneville Class Counsel submit that they should win the preparation and readiness prize.

[93] For their part, Stibbe Class Counsel claim the preparation prize as their own, and they, in effect, suggest that the court should award Quenneville Class Counsel a booby prize in recognition of a terrible performance in delivering a preemptive certification motion. Stibbe Class Counsel submit that Quenneville Class Counsel hastily compiled a certification motion record to give the impression that they were further advanced in preparation, but that upon close examination, the certification motion material is deficient.

[94] In particular, Stibbe Class Counsel castigate Dr. Jacobs’ expert report. They submit that among other alleged deficiencies, Dr. Jacobs does not describe what data will be required to conduct the analysis nor indicate where that data is expected to be found.[^18] They assert that he does not apply the facts as alleged in the Quenneville claim and that he makes no reference to the misrepresentation claim and the alleged role of the Canadian Financing subsidiaries. Relying on Mancinelli v. Barrick Gold Corporation,[^19] where Chief Justice Strathy stated that: "the court should be suspicious of a 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,” Stibbe Class Counsel submit that the court should be sceptical about the Quenneville Plaintiffs’ march forward with a certification motion.

[95] In my opinion, it was ill-advised for the Quenneville Class Counsel to deliver a certification motion in the face of a carriage motion, and they ill-served the putative Class Members by doing so.

[96] However, it was equally ill-advised for the Stibbe Class Counsel to think that a court would decide the merits of Dr. Jacobs’ report in the context of a carriage motion, and they ill-served their own putative Class Members by attacking an expert who, as it will turn out, will be the Class Members’ expert. One of the problems of carriage motions, is that defendants feast off them, and Class Counsel make arguments that at the certification motion they will submit are out of bounds. That dysfunctional phenomena occurred in the case at bar.

[97] In any event, in my opinion, the preparation and readiness of the action factor is not relevant to the circumstances of the immediate case. The preparation factor is not meant to be a factor to encourage mutual lawyer-bashing as occurred in the case at bar. Both Class Counsel appear to have been hard working and committed to winning carriage and ultimately to pursuing success in the class proceeding. They are not rustlers, and they delivered pleadings after genuine investigation and analysis. Generally speaking, the preparation factor is designed to weed out laggards and late-arriving Class Counsel attempting to poach on the work done by others. There are no poachers in the case at bar. The preparation factor is neutral in the circumstances of the immediate case.

5. Preparation and Performance on Carriage Motion

[98] Quenneville Class Counsel submit that the conduct of the rival law firms in attempting and in the immediate case failing to form a consortium, which would have avoided the carriage motion, should be considered as a factor in determining carriage. Thus, Quenneville Class Counsel submit that Stibbe Class Counsel’s refusal to develop a fair consortium agreement is conduct that should not be rewarded; i.e., they should be punished and not granted carriage. This argument is without any merit whatsoever.

[99] What might have some merit is the notion that how a Class Counsel demonstrates their advocacy skills in the road test of a carriage motion might be a factor to be considered in deciding carriage. Making this factor transparent might explain some of the close calls in deciding a carriage motion.

[100] In any event, it is a neutral factor in the case at bar.

J. The Quality of the Competing Litigation Plans

1. Case Theory

[101] In the circumstances of the immediate carriage motions, case theory is the critical factor. However, the rudimentary problem about the submissions of the competing Class Counsel about the soundness of their Plaintiffs’ case theories and about the unsoundness of their rival’s case theories is that it is near impossible for the self-represented Class Counsel to be objective. And they refuse to listen to one another, else listening be seen as a sign of weakness.

[102] Stibbe Class Counsel submit that both case theories cover price-fixing, innovation stifling, and collusion through working groups. Stibbe Class Counsel submit, however, that the case theories diverge and that the Quenneville case theory becomes unfocused, speculative, untested, expensive, and risky. Stibbe Class Counsel submit that the Quenneville Plaintiffs’ case becomes unhinged by the allegations that the Defendant car manufacturers functioned as one company, colluded on the development of vehicle platforms, and colluded on managing market share and brand prices.

[103] Further, Stibbe Class Counsel submit that the case theories diverge even more because the Quenneville Plaintiffs expand the scope of the conspiracy to include the Defendants’ financing, marketing, and advertising in North America which is the basis of a claim based on a contravention of s. 52, which claim Stibbe Class Counsel submit is not legally or factually viable, and if viable, they submit that the s. 52 claim is a redundant, unnecessary, and unproductive complication to an already complex class proceeding. In effect, Stibbe Class Counsel accuse Quenneville Class Counsel of making a mountain-range-to-climb class action out of a mountain-to-climb class action.

[104] For their part, Quenneville Class Counsel respond quite sarcastically that the Stibbe action’s case theory is just a conventional price-fixing theory that totally misses the target and does not fit the factual footprint of the actual events.

[105] Stibbe Class Counsel respond to Quenneville Class Counsel’s criticism of the Stibbe Plaintiffs’ theory of the case as mistaken, ignorant, unmerited, and unsubstantiated and as revealing Quenneville Class Counsel’s own poor understanding of their own theory and of competition law generally. Stibbe Class Counsel submits that Quenneville Class Counsel’s reliance on a monopolist theory reflects a failure to understand the role of lawful technological standardization among competitors.

[106] Stibbe Class Counsel submit that their theory has been mistakenly described as just a price-fixing theory, but they submit their own theory demonstrates a sensitivity to cartel behaviour that is both broader and more nuanced than price-fixing. They submit that their theory is demonstrably superior than Quenneville Class Counsel’s theory because: it reflects a more nuanced, sophisticated, and realistic view of intra-industry cooperation between competitors and appropriately reflects the public reporting and evidence in the record. And, Stibbe Class Counsel submit in their responding factum, that Quenneville Class Counsel’s factum confirms that they are less suited to pursue the claims on behalf of Canadian consumers.

[107] Before moving to express my own objective, no skin in the game, opinion, I digress slightly to point out that particularly because class actions tend to be a response to media reports of a discovery of a mass harm, it can be expected that case theories will change, develop, and improve as the case proceeds and as more facts are known or become known through the discovery process. Carriage motions, however, precipitate a premature evaluation of case theories that will develop and change. Moreover, it would appear that the fear of carriage motions and also the fear of not achieving certification, which as the case law has developed is not as scary as it once was, encourages Class Counsel to draft a statement of claim that hemorrhages speculative evidence and not material facts, which complicates the analysis of case theory. The point is that some encouragement of creativity combined with some latitude and patience should be aspects of a court’s evaluation of a case theory at the carriage motion stage.

[108] Returning to the case at bar, my own view is that both case theories are more than adequate to do the job, and to the extent that the pleadings of either are deficient or could be improved, they are fixable. Neither Plaintiff pleads a conventional price-fixing conspiracy. Both Plaintiffs appreciate that for their respective class actions to succeed they must prove that the cooperation of the Defendants through their working groups moved from innocent cooperation to a culpable conspiracy. Both Plaintiffs plead Statements of Claim that could lead to behaviour modification and access to justice.

[109] However, in the immediate carriage motion, case theory is the most-weighty factor for determining who should have carriage, and in my opinion, the superior and more creative and more developable case theory is that of the Quenneville action.

[110] I disagree with Stibbe Class Counsel’s arguments that the Quenneville Plaintiffs have unnecessarily and unproductively multiplied the alleged conspiracies and unnecessarily expanded the scope of the investigation from events in Europe to what was happening in North America. I also disagree with Stibbe Class Counsel’s argument that the claim based on s. 52 of the Competition Act is either legally or factually unviable.

[111] During the oral argument, Stibbe Class Counsel backed off from my question whether it was categorically the case that a class action based on a violation of s. 52 of the Competition Act was uncertifiable and the response was that it would be difficult but not categorically impossible to certify such a cause of action. Class Counsel, however, did not back down in submitting that the deceptive marketing misrepresentation claim in the immediate case would not be certifiable.

[112] Apart from the circumstance that neither Class Counsel can be objective in their assessments and recognizing that the case at bar is novel and that competition law class actions are in a nascent development stage, in my opinion, the immediate case provides an opportunity to test the extent to which s. 52 is relevant to a case about the movement from innocent cooperation to culpable conspiracy. Win or lose the s. 52 claim adds to the class action. The claim is not redundant, which is to say the Plaintiffs might fail in their s. 45 and s. 46 claims and yet succeed with their s. 52 claim. I cannot at this juncture say whether the s. 52 claim will succeed, but if it fails, then in the ongoing experiment that is the development of the law, something will be learned.

[113] Put simply, it is a photo finish on case theory, but I am persuaded that the Quenneville Plaintiffs’ case theory is superior to the case theory of the Stibbe Plaintiffs, and, therefore, carriage should be award to Quenneville Class Counsel.

2. Scope of Causes of Action

[114] Stibbe Class Counsel submit that in seeking a constructive trust remedy, the Quenneville Plaintiffs are seeking an unavailable remedy because a remedial constructive trust is available only in cases when there is a claim for a beneficial entitlement to property or where a monetary award is inappropriate or insufficient, which, they submit, is not the situation in the immediate case.[^20]

[115] Quenneville Class Counsel responded that the Class Members transferred property through their dealings with the Defendants’ financing and leasing affiliates and this makes a constructive trust a possible a remedy should the Defendants be culpable.

[116] Frankly, I do not understand Quenneville Class Counsel’s argument, and I tend to agree with Stibbe Class Counsel’s argument, but, at the end of the day, assuming that the constructive trust claim is problematic, then this can be resolved at the certification motion and the problem about this claim, if any, is not a reason to deny carriage to Quenneville Class Counsel.

3. Selection of Defendants

[117] Stibbe Class Counsel submit that the joinder of defendants criterion favours the Stibbe action, because the Quenneville Plaintiffs have made errors of commission and of omission; namely, in expanding the scope of the claim to include activities in North America, Defendants have been added without any supporting evidence and in failing to name Bosch, the key player in diesel engine control system design, a proper party has been omitted.

[118] For the reasons expressed above, the inclusion of activities in North America is a favourable not unfavourable factor for Quenneville Class Counsel.

[119] As for Bosch, Quenneville Class Counsel submits that the Quenneville Plaintiffs did not sue Bosch because there is no public information which credibly and specifically identifies Bosch as a co-conspirator. Further, since Bosch is not a competitor of the Defendants, no claim could be brought against it under the new version of s. 45(1).

[120] Stibbe Class Counsel rebuff the argument that they have improperly or uselessly joined Bosch by pointing out that Bosch is named as a co-conspirator beyond the Competition Act. The Stibbe action also alleges common law conspiracy (both unlawful means and predominant purpose) against the Defendants, and the common law torts do not require all participants to be competitors.

[121] My take on this factor is that Bosch will be a witness in any event, and I regard it as a proper but not a necessary party. I see nothing inappropriate in the Stibbe Plaintiffs joining Bosch but, in my opinion, whether Bosch is in or out as a party is not a reason to disqualify Quenneville Class Counsel from having carriage.

[122] Presently, the limitation period for claims against Bosch is stayed by s. 28 of the Class Proceedings Act, 1992, and since I am granting carriage to the Quenneville action, I shall postpone the operation of my stay order for 30 days from the release of this decision to provide the Quenneville Plaintiffs the opportunity of adding Bosch, if they are so advised. Bosch is a proper but not a necessary party.

4. Correlation of Plaintiffs and Defendants

[123] The correlation of plaintiffs and defendants is not a factor in the immediate case.

5. Class Definition

[124] In Kowalyshyn v Valeant Pharmaceuticals International, Inc.,[^21] I indicated that generally speaking an over-inclusive class definition is preferable to an under-inclusive one; I stated:

Generally speaking, having regard to the goals of class actions to provide access to justice, behaviour modification, and judicial economy, more serious than an over-inclusive Class Membership, which can be pruned, is an under-inclusive definition. One, however, cannot be definitive about the extent of a class definition because class size involves several concerns and the nature of the particular class action makes a difference.

[125] Stibbe Class Counsel submit that if the Defendants fixed the prices of automobiles and stifled innovation, as is alleged in both actions, then those who bought their vehicles second-hand should be included in the Class. Stibbe Class Counsel argue that the owners of second-hand cars overpaid for their cars and suffered greater depreciation, paid more in taxes, paid more in insurance and in interest as a result of owning more expensive cars, and there is no reason that Class Members who similarly overpaid, and suffered a loss, should be left out.[^22]

[126] Quenneville Class Counsel counter that the used-vehicle market is different from the market occupied by the Defendants, where a finished product is sold and rather is a market where a product is resold after it has been used to varying degrees by one or more previous buyers. Quenneville Class Counsel argue that by including a market for used vehicles into the immediate case would introduce a wide-range of confounding variables including the geographical scope of the market(s) for used automobiles, non-defendant sellers, previous vehicle history including mileage and the overall condition of each vehicle and countless other valuation inputs that are unique to the market(s) for the sale of used vehicles.

[127] Quenneville Class Counsel submit that the used car market is occupied by different sellers and variables that do not exist in the new vehicle market. They submit it would be a totally different conspiracy to suggest that the Defendants harmed different participants from the conspiracy against the purchasers of new vehicles. Quenneville Class Counsel suggest that the Stibbe Plaintiffs would be undertaking a case involving very different and very difficult conspiracies to prove.

[128] The metaphor for class size is whether the additional class members can usefully get on board the class action boat or train without causing it to sink or derail as it attempts to leave harbour or the station. In the immediate case, there would be massive disruptive overloading and also possible conflicts of damages distribution assuming the class action settled or was successful after trial. I agree with the Quenneville Plaintiffs’ argument that the class size factor favours the Quenneville action.

6. Class Period

[129] The Stibbe action commences five years later and ends in 2014. In my opinion, the class period factor is neutral in the circumstances of the immediate case.

7. Prospect of Success: (Leave and) Certification

[130] Stibbe Class Counsel submit that their claim is certifiable, and the Quenneville Plaintiffs’ claim is not certifiable. In particular, they submit that the Quenneville Plaintiffs’ misrepresentation claim is not certifiable.[^23] And, as noted above, Stibbe Class Counsel submit that that the Quenneville Plaintiffs’ competition law claim is uncertifiable because Dr. Jacobs’ report has glaring deficiencies and he does not prove that there is a methodology capable of establishing loss on a class-wide basis.[^24]

[131] As I have already explained above, the s. 52 claim is a worthwhile claim, and as I have already said, it was ill-advised for Quenneville Class Counsel to deliver a certification record and it was ill-advised for Stibbe Class Counsel to attack Dr. Jacobs’ report. For a carriage motion, the prospect of success factor is another dysfunctional criterion that could usefully be discarded in future carriage fights.

[132] A carriage motion is not a dress rehearsal for the certification motion, and although the defendants are delighted to watch, it is litigation porn to have Class Counsel simultaneously roleplay being the lawyer for the plaintiff and for the defendant in the same case. I cannot at this juncture determine the prospects of success of another motion, the certification motion, where there will be no role-playing. I do not find the prospect of success criterion helpful in the immediate case, where, as I have explained above, there are more than adequate case theories and litigation plans for both cases.

8. Prospect of Success against the Defendants

[133] For similar reasons, the prospect of success against the Defendants is not a factor in the immediate case. Both class actions have the possibility of success and the same risks of failure.

9. Interrelationship of Class Actions in more than one Jurisdiction

[134] The interrelationship of class actions in more than one jurisdiction is not a factor in the immediate case.

K. Conclusion

[135] For the above reasons, I grant carriage to Class Counsel in the Quenneville action. Order accordingly. There shall be no order as to costs.

Perell, J.

Released: March 7, 2018

[^1]: S.O. 1992, c. 6.

[^2]: R.S.C. 1985, c. C-34.

[^3]: R.S.O. 1990, c. 43.

[^4]: Setterington v. Merck Frosst Canada Ltd., 2006 CanLII 2623 (ON SC), [2006] O.J. No. 376 at paras. 9-11 (S.C.J.); Ricardo v. Air Transat A.T. Inc., [2002] O.J. No. 1090 (S.C.J.), leave to appeal dismissed [2002] O.J. No. 2122 (S.C.J.).

[^5]: Vitapharm Canada Ltd. v. F. Hoffman-Laroche Ltd., [2000] O.J. No. 4594 (S.C.J.).

[^6]: Sharma v. Timminco Ltd. (2009), 2009 CanLII 58974 (ON SC), 99 O.R. (3d) 260 at para. 14 (S.C.J.); Setterington v. Merck Frosst Canada Ltd., supra, at para. 13; Vitapharm Canada Ltd. v. F. Hoffman-La Roche Ltd., [2000] O.J. No. 4594 at para. 48 (S.C.J.).

[^7]: Simmonds v. Armtec Infrastructure Inc., sub nom. Locking v. Armtec Infrastructure Inc., 2012 ONSC 44, leave to appeal to Div. Ct. granted, 2012 ONSC 5228, affirmed 2013 ONSC 331 (Div. Ct.); Tiboni v. Merck Frosst Canada Ltd., 2008 CanLII 37911 (ON SC), [2008] O.J. No. 2996 (S.C.J.), sub. nom Mignacca v. Merck Frosst Canada Ltd., leave to appeal granted 2008 CanLII 61238 (ON SC), [2008] O.J. No. 4731 (S.C.J.), aff'd 2009 CanLII 10059 (ON SCDC), [2009] O.J. No. 821 (Div. Ct.), application for leave to appeal to C.A. ref'd May 15, 2009, application for leave to appeal to S.C.C. ref'd [2009] S.C.C.A. No. 261.

[^8]: Joel v. Menu Foods Gen-Par Limited, 2007 BCSC 1482, [2007] B.C.J. No. 2159 (B.C.S.C.); Genier v. CCI Capital Canada Ltd., [2005] O.J. No. 1135 (S.C.J.); Setterington v. Merck Frosst Canada Ltd., supra.

[^9]: Agnew-Americano v. Equifax Canada Co., 2018 ONSC 275; Kaplan v. Casino Rama Services Inc., 2017 ONSC 2671; Kowalyshyn v. Valeant Pharmaceuticals International, Inc., 2016 ONSC 3819; Mancinelli v. Barrick Gold Corp., 2014 ONSC 6516 aff’d ONSC 2015 ONSC 2717 (Div. Ct.), aff’d 2016 ONCA 571; Wilson v. LG Chem Ltd., 2014 ONSC 1875; McSherry v. Zimmer GMBH, 2012 ONSC 4113; Smith v. Sino-Forest Corporation, 2012 ONSC 24; Sharma v. Timminco Ltd., supra; Genier v. CCI Capital Canada Ltd., supra; Gorecki v. Canada (Attorney General), [2004] O.J. No. 1315 (S.C.J.); Ricardo v. Air Transat A.T. Inc., supra.

[^10]: Kowalyshyn v. Valeant Pharmaceuticals International, Inc., 2016 ONSC 3819 at para. 146.

[^11]: Former section 45(1) was repealed by S.C. 2009, c. 2, s. 410 and the new section came into effect on 12 March 2010.

[^12]: Watson v. Bank of America Corporation, 2015 BCCA 362 at paras. 72-77; Fairview Donut Inc. v. TDL Group Corp., 2012 ONSC 1252 paras. 615-629, aff’d 2012 ONCA 867, leave to appeal to SCC refused, 2013 SCCA No. 47.

[^13]: Commissioner of Competition v. Premier Career Management Group Corp., 2009 FCA 295 at paras. 61-62.

[^14]: 2016 ONCA 571 at para. 18.

[^15]: Sharma v. Timminco Ltd. (2009), 2009 CanLII 58974 (ON SC), 99 O.R. (3d) 260 at para. 18 (S.C.J.).

[^16]: Mancinelli v. Barrick Gold, 2014 ONSC 6516 at para. 12, aff’d ONSC 2015 ONSC 2717 (Div. Ct.), aff’d 2016 ONCA 571.

[^17]: 2018 ONSC 275.

[^18]: Ewert v. Nippon Yusen Kabushiki Kaisha, 2017 BCSC 2357 at paras. 38-56.

[^19]: 2016 ONCA 571 at para. 61.

[^20]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 92.

[^21]: 2016 ONSC 3819 at para. 215.

[^22]: Quenneville v Volkswagen, 2017 ONSC 2448; Quenneville v. Robert Bosch GmbH, 2017 ONSC 7422.

[^23]: Cannon v. Funds for Canada Foundation, 2012 ONSC 6101; Clark v. Energy Brands Inc., 2014 BCSC 1891 at paras. 152-53; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at paras. 156, 205.

[^24]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 118.