25 Sep Acheson Law Wins Carriage of Class Action
Last week the Supreme Court of British Columbia decided that Acheson Sweeney Foley Sahota should have carriage over a class action proceeding instead of Merchant Law Group (Strohmaier v. British Columbia (Attorney General), 2018 BCSC 1613).
Each law firm had commenced a class action for damages against various government agencies for allegedly failing to pursue compensation on behalf of minors injured while in the care or custody of the Province.
Merchant Law Group (“Merchant Law”) filed their notice of civil claim on behalf of the plaintiffs in the Strohmaier action in 2012. Acheson Sweeney Foley Sahota (“Acheson Law”) filed their notice of civil claim on behalf of the plaintiffs in the K.S. action in 2017. When Merchant Law became aware of the K.S. action, they requested a judicial management conference in order to establish a schedule for the certification application. Acheson Law took the position that the issue of carriage had to be addressed first, given the existence of the two overlapping proceedings. The Judge agreed that the matter of carriage should be determined before any certification application.
As a result, an application was brought to determine which of the two actions should be permitted to proceed. This question also involved a determination of which counsel would have carriage of the action.
In the Court’s view, the most significant factor in the carriage analysis in this case was the experience and quality of proposed class counsel.
The Judge noted that some degree of comparison between competing firms was inevitable when considering which action, and which counsel, would best advance the central objectives of class proceeding legislation, including the best interests of the class members and fairness to the defendants.
The Judge acknowledged that Merchant Law had more experience in class proceedings, although experience was not merely a question of quantity but also of quality. Moreover, the issue was less about counsel’s experience and more about whether counsel had the experience, resources and capability to properly advance the substantive claims underlying the action. The Judge noted that Acheson Law was a well-established BC based firm with extensive experience in litigation involving claims similar to those arising here. He was satisfied that Acheson Law was fully capable of prosecuting the K.S. action in the best interests of the class members.
In the Judge’s view, a significant issue informing the carriage analysis was the reputation and past conduct of Merchant Law. Numerous courts had expressed concerns about both Merchant Law’s ability and willingness to adhere to court processes, and its fidelity to clients as distinct from its own self-interest.
The Judge had grave concerns about the ability of Merchant Law to act in the best interests of the proposed class which, given the nature of the underlying claims, was likely to be largely composed of vulnerable individuals. The Judge’s concerns were compounded by the manner in which the Strohmaier action has been conducted to date, as there had been considerable delay in that action.
For the reasons set out above, the Judge found that the interests of class members were best served by granting carriage to Acheson Law in the K.S. action. The Strohmaier action commenced by Merchant Law was stayed.