Date: 20160824 Docket: CI 15-01-9442? and CI 16-01-01540 (Winnipeg Centre) Indexed as: Thompson et al. v. Minister of Justice of Manitoba et al. and Meeches et al. v. The Attorney General of Canada Cited as: 2016 MBQB 169 COURT OF BENCH OF MANITOBA Queen's Bench File No. CI 15-01-94427 BETWEEN: LYNN THOMPSON, DAVID CHARTRAND and LAURIE-ANNE Plaintiffs, -and- HER MAJESTY THE QUEEN IN RIGHT OF MANITOBA, AS REPRESENTED BY THE MINISTER OF JUSTICE OF MANITOBA and HER MAJESTY THE QUEEN IN RIGHT OF AS REPRESENTED BY THE MINISTER OF INDIAN AND NORTHERN CANADA, AFFAIRS OF CANADA, Defendants. Queen's Bench File No. CI 16-01-01540 BETWEEN: PRISCILLA MEECHES and STEWART GARNET, Plaintiffs, -and? THE ATTORNEY GENERAL OF CANADA, Defendant. COUNSEL: Roch Duoont and Norman Rosenbaum, for the Plaintiffs: Jim R. Koch and Denis G. Gue?nette, for Manitoba Justice Bradlev J. Fave! and Joseoh M. Lanoan, for the Attorney General of Canada Kirk M. Baert, Celeste Poltak and Scott Robinson Dennis M. Troniak and Jonathan A. Troniak. for the Plaintiffs Bradlev J. Favel and Joseoh M. Langan. for the Attorney General of Canada Judgment delivered: August 24, 2016 Page:2 EDMOND J. INTRODUCTION Multiple plaintiffs have ?led statements of claim and both actions have proposed class proceedings in relation to the same subject matter. The competing claims relate to what is commonly or historically referred to as the ?60?s scoop" in Manitoba. The 60?s scoop is in reference to a practice that is alleged to have commenced in the 1960's and continued until the late 1980's or perhaps longer whereby the federal and provincial governments are alleged to have removed Aboriginal children from their birth families and placed them in foster or adoptive homes with non aboriginal parents. The plaintiffs in both actions allege that they suffered injuries due to the alleged breaches of duty by the defendant(s). In many class action proceedings, the proposed class representatives and legal counsel reach agreement as to how the actions should be advanced in court. Regrettably, that is not always possible and the parties seek redress from the court to determine which proposed class action should proceed and who should have carriage of the proceeding. The primary issue to be determined in this case is which of the plaintiffs and which of the law ?rms should have carriage of the proposed class proceedings. By consent of all counsel in the Thompson action File No. CI 15-01- 94427) case management was ordered and the ?rst case management conference proceeded on April 27, 2016. Prior to the case management Page:3 conference, a request was made by consent of counsel for the parties in the Meeches action (QB. File No. CI 16-01-01540) to participate in the case management conference. That request was permitted. At the ?rst case management conference, the parties agreed that the ?rst issue to be determined by the court was which of plaintiffs and their legal counsel should have carriage of the proposed class action proceedings. A scheduling order was made to ?le materials for a hearing which proceeded on June 17, 2016. Two motions were ?led in the Thompson action. The ?rst motion was ?led on May 22, 2016 and instead of seeking carriage of the proposed class proceeding, the plaintiffs seek an order granting leave to the plaintiffs in the Thompson action and the Meeches action to proceed to certi?cation to determine whether one or more class actions may be certi?ed as a class action, and if so, on what terms. Alternatively, the plaintiffs in the Thompson action seek an order granting those plaintiffs leave to proceed to certi?cation and request a stay of the Meeches action. The plaintiffs in the Meeches action ?led a motion on May 18, 2016 seeking an order appointing the counsel group Koskie Minsky LLP and Troniak Law (the consortium) as counsel for the proposed class action against the Attorney General of Canada (Canada) on account of the 60?s scoop in Manitoba and an order permanently staying the Thompson action and what is referred to as Thompson action No. 1 ?led in 2009 and Thompson action No. 2 ?led in 2015. The plaintiffs in the Meeches action also seek a declaration that no other class Page: 4 action may be commenced in Manitoba against Canada in respect of the facts pleaded in the statement of claim without leave of the court. The plaintiffs in the Thompson action ?led a further notice of motion on June 9, 2016 seeking an order striking the moving party?s brief of law in the Meeches action. At the hearing on June 17, 2016, legal counsel for the plaintiffs in the Thompson action con?rmed that they abandoned that motion. BACKGROUND On April 20, 2009, the plaintiffs issued the ?rst statement of claim in the Thompson action. The statement of claim was amended on February 4, 2011. No steps were taken to proceed to certi?cation in that action. The plaintiffs in the Thompson action allege that the defendants in the Thompson action objected to having a case management judge appointed on the basis that the claim was not properly served. The plaintiffs in the Thompson action ?led what they called a ?replacement claim" on March 13, 2015. On October 22, 2015, legal counsel in the Thompson action requested that a case management judge be appointed to handle the class proceeding. Perlmutter A.C.J. responded by letter dated October 27, 2015 advising that at that time, case management was primarily a voluntary process. He inquired of counsel whether the other parties were in agreement with case management. He also noted that if the plaintiffs proceeded with the certi?cation motion that the judge assigned to hear the certi?cation motion may also provide case management. Rather than ?le a certi?cation motion, legal counsel in the Thompson action wrote Page:5 PerlmutterA.C.J. again on January 20, 2016. Perlmutter A.C.J. responded by letter dated January 28, 2016 to one of the points made in the letter as follows: In item 8 of your letter, you write: ?In a class action process in all other provinces the motion for certi?cation is ?led then a case management judge is appointed then we proceed to set out a certi?cation timetable as we have done in the foster care matter now in case management with yourself." Indeed, in Manitoba, the process is essentially the same. In the case at hand, the reason a case management judge has not been assigned is because you have not ?led the motion for certi?cation, which you, in item 8 of your letter, indicate is in fact also required in other provinces for the purpose of a case management judge being appointed. In the circumstances, the reference to case management being a voluntary process in Manitoba is in cases where there is no motion for certi?cation pending. This describes the current status of this action. That is, you have not ?led a motion for certi?cation and therefore, case management remains a voluntary process. Should you decide to ?le a motion for certi?cation, thereafter a case management judge will be assigned. Ultimately, letters were ?led with the court in the Thompson action consenting to case management and I was assigned as the case management judge. The plaintiffs in the Thompson action attempted to ?le a notice of discontinuance of the ?rst Thompson action and proceed with the replacement claim. The ?rst notice of discontinuance was rejected by registry on February 17, 2015. Ultimately, in June 2016 the ?rst Thompson action was discontinued. For the purposes of this decision I will refer to the Thompson action as the action issued March 13, 2015. Page: 6 THE PROPOSED CLASS PROCEEDING [10] The Thompson action de?nes the class for the proposed class proceeding as follows: All Aboriginal persons, including their estates, who were removed by the defendants from their families or communities as children, and suffered injuries due to the defendants? breach of ?duciary obligations, duty of care and cultural genocide, and their dependants and famin members. [11] The causes of action identi?ed in the Thompson action include breach of ?duciary duty, negligence, cultural genocide, breaches of the Charter of Rights and Freedoms and the Canadian of Rights, violations of s. 35(1) of the Constitution Act, 1982, contravention of Article 2(e) of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948) and alleged crimes against humanity within the meaning of the Rome Statute of the international Criminal Court which are alleged to constitute genocide pursuant to the United Nations Con venoon on the Prevention and Punishment of the Crime of Genocide. [12] The plaintiffs in the Thompson action name both the Province of Manitoba (Manitoba) and Canada as defendants in the action. They seek an order certifying the action as a class proceeding and although the statement of claim names Thompson, David Chartrand and Laurie?Anne O?Cheek as plaintiffs, a motion seeking certi?cation seeks to designate David Chartrand as the representative plaintiff for the class. The plaintiffs seek general and special damages for the class, ?sentimental damages", damages for mental distress, Page:7 aggravated damages, exemplary and punitive damages, other damages and prejudgment and post?judgment interest. [13] The Meeches action relates to the same subject matter as the Thompson action but advances a different approach to the proposed class action. The Meeches action names Canada as the sole defendant and the causes of action are based on breach of ?duciary duty and negligence relating to the alleged ?60?s Scoop" of Aboriginal children in Manitoba. [14] The proposed class is de?ned in the statement of claim (para. 9) as follows: The Proposed Class is composed of all Indian, non-status Indian, and/or M?tis children who were taken from their homes on reserves lying within the boundaries of the CA5 in Manitoba, or resided within the boundaries of the CAS and had not established residence in a place other than a reserve in Manitoba, at or after September 2, 1966, and were placed in the care of non-Aboriginal foster or adoptive parents who did not raise the children in accordance with the Aboriginal Person?s customs, traditions, and practices. [15] The plaintiffs in the Meeches action seek an order certifying a class proceeding pursuant to The Cfass Proceedmgs Act: C.C.S.M., c. C135 (CPA) and appointing the named plaintiffs, Priscilla Meeches and Stewart Garnett, as representative plaintiffs for the class. The plaintiffs seek declaratory relief that the defendant breached its ?duciary duties and common law duties of care owed to the plaintiffs and the class and seek damages in the amount of $200 million or such other amount as this court deems appropriate plus punitive damages, prejudgment and post?judgment interest and costs. Page: 8 CARRIAGE OR CERTIFICATION MOTION HEARD FIRST [16] Notwithstanding the fact that counsel attending the ?rst case management conference on April 27, 2016 advised that they agreed that the ?rst issue to be determined was a carriage motion, legal counsel in the Thompson action submitted that both proposed class actions ought to proceed to certi?cation and that carriage issues be deferred. [17] There are numerous authorities across Canada including in Manitoba (Grasby 17. Merck Frosst Canada Ltd, 2007 MBQB 97, 216 Man.R. (2d) 117 in which the courts have found that a carriage motion ought to precede certi?cation. See: Wtapnarm Canada Ltd. v. F. Ho?man-La Roche Ltd. (2000), 4 C.P.C. (5th) 169, [2000] OJ. No. 4594 (S.C.J.) Ricardo v. Air Transat 7LT. Inc. (2002), 21 C.P.C. (5th) 297, [2002] 0.1. No. 1090 (S.C.J.) Setterington 17. Merck Frosst Canada Ltd., [2005] N0. 3818 (S.C.J.) Setteringtan v. Merck Frosst Canada Ltd. (2006), 26 C.P.C. (6th) 173, [2006] OJ. No. 376 (S.C.J.) (QL) and also Garecki v. Canada (Attorney General) (2004), 47 one. (5th) 151, [2004] 0.1. No. 1315 (S.C.J.) Genre:- v. Capital Canada Ltd. (2005), 14 C.P.C. (6th) 297, [2005] OJ. No. 1135 (S.C.J.) Nelson 17. Merck Frosst Canada Ltd., 2006 BCSC 1549, [2006] B.C.J. No. 2736 Joe! 17. Mann Foods Genpar Ltd, 2007 BCSC 1248, [2007] B.C.J. No. 1861 (QL) and Ward Branch, Class Actions in Canada (Canada Law Book, Release No. 42, November 2015 at 04.1340). Page:9 [18] McKelvey J. in the Grasby case dealt speci?cally with the jurisdiction of the court to hear a carriage motion and to stay related proposed class proceedings prior to a matter being certi?ed as a class action. After reviewing a number of the authorities noted above and relevant sections of the CPA and The Court of Queen?s Bench Act, C.C.S.M., c. C280 and the Court of Queen?s Bench Rules, Man. Reg. 533/88, she concluded as follows: 25 I have no dif?culty in ?nding that this Court has inherent jurisdiction to order that a carriage motion proceed prior to certi?cation. The inherent jurisdiction of this Court to control its processes and to manage litigation support this ?ndingThe Court of Queen's Bench Act. Further, the case law evidenced by Richard, Setterington, Nelson, Gorecki v. Canada (Attorney-General), [2004] No. 1315, 2004 CarswellOnt 1266 and Grenier v. CCI Capital Canada Ltd., [2005] No. 1135, 2005 CarswellOnt 1141 all demonstrate the practice of carriage motions preceding certi?cation. This approach is primarily to streamline the process and speaks to the issue of judicial economy and access to justice. These sections of The Court of Queen's Bench Act and the case law support hearing carriage prior to certi?cation in this case. The ordinary rules and the inherent jurisdiction of court are not ousted by virtue of the existence of the CPA. Further, this result is in keeping with the spirit of the CPA which serves to promote: (1) resolution of common issues in the best interests of the putative class, while being fair to the defendant; (2) procedural mechanism for resoiving common or overlapping issues in a single proceeding, minimizing dupiicative activity and con?icts in a proceeding; and (3) judicial economy and access to justice which enable class proceedings to be handled in the most just, expeditious and inexpensive means possible. The Court has jurisdiction to hear carriage prior to certi?cation. [19] I am satis?ed on the basis of my review of the relevant authorities as well as the relevant legislation that the carriage motion should be heard prior to certi?cation of the proposed class proceeding as it is in the best interests of the Page:10 putative class, while being fair to the defendants, will avoid multiplicity of proceedings and will serve to secure the just, most expeditious and least expensive determination of the proposed class proceeding. CARRIAGE MOTIQN FACTORS [20] The parties agree that the overriding principle considered by the court in deciding a carriage motion is to determine what is in the best interests of the putative class members having regard to the goals and objectives of the CPA and ensuring fairness to the defendant (see Vitapnarm at para. 48 and Simmonds v. Armtec Infrastructure Inc., 2012 ONSC 44, 35 C.P.C. (7th) 269 at para. 16, aff?d. Locking v. Armtec Infrastructure Inc., 2013 ONSC 331, 46 C.P.C. (7th) 427 (S.C.J., Div. Ct.) at paras. and 9). [21] In the Vitapharm case, Cumming J. set forth a non?exhaustive list of factors to be considered on a carriage motion. He outlined a number of factors to be considered when determining which group and which action should be awarded carriage of a proposed class proceeding including: the nature and scope of the causes of action advanced; a the theories advanced by counsel as being supportive of the claims advanced; a the state of each class action, including preparation; - the number, size and extent of involvement of the proposed representative plaintiffs; - the relative priority of commencing the class actions; and Page: 11 the resources and experience of counsel. (Vitapharm, at para. 49) (See: Grasby v. Merck Frasst Canada Ltd, at para. 9; Sharma v. Timminco Ltd. (2009), 99 OR. (3d) 260 (S.C.J.), at para. 17; Wilson LG Chem Ltd., 2014 ONSC 1875, [2014] No. 1388 (QL), at para. 18.) [22] In the case of Smith v. Sine-Forest Corp., 2012 ONSC 24, 34 C.P.C. (7m) 76, Perell J. referred to the factors the courts generally consider on carriage motions and added several more factors that he took into consideration in that case including: 1. Funding, 2. De?nition of class membership, 3. De?nition of class period, 4. Joinder of defendants, 5. The plaintiff and defendant correlation, and 6. Prospects of certi?cation. (para. 18) [23] In the Setterington case ([2006] No. 376), the court granted carriage of the action to a national consortium of 19 law ?rms from across Canada. It is important to emphasize that the court stated that the mere fact that the successful counsel had named a greater number of defendants was not a suf?cient basis for the preference of one action over another. The court found that the national consortium had greater resources, had put forward evidence of having been contacted by many members of the class and that the competing counsel were in a conflict of interest. Page: 12 [24] Dealing with the nature and scope of the causes action advanced, Winkler J. in the case ([2006] OJ. No. 376) stated: 18 Setterington counsel contend that the choice to name defendants in a class action is one that should be left to the proposed representative plaintiffs acting on the advice of experienced counsel. I agree. When the court is asked to choose between proceedings, the analysis must be qualitative rather than quantitative. The mere inciusion of a multitude of defendants is not suf?cient to provide a basis for the preference of one action over another. At this stage of the proceeding, the Setterington plaintiffs assert, based on the advice of their counsel, that there is insuf?cient information to posit a sustainable claim against the Federal Government. That is a permissible exercise of judgment within the purview of a proposed representative plaintiff. Indeed, as held by the Supreme Court of Canada in Rumley v. British Columbia, [2001] 3 S.C.R. 184 (S.C.C.), plaintiffs are entitled to restrict the claims in a class proceeding to make it more amenable to certi?cation. (See Rumley, para. 30; See also Pearson v. Inco, [2005] OJ. No. 4918 (Ont. 19 In this case, the Setterington plaintiffs provided a suf?cient explanation for their decision not to include the Federal Government as a defendant at this stage of the proceeding. The purpose of a carriage motion is not to parse the action ?nely or overly analyze it for purposes of comparison but rather to scrutinize each for any glaring de?ciencies. Here there are different theories underlying the causes of action in the two competing Statements of Claim and each plaintiff group urge that their approach is to be preferred. However, on a carriage motion it is inappropriate for the Court to embark upon an analysis as to which claim is most likely to succeed unless one is "fanciful or frivolous", to adopt the words of Rady J. in Gorecki. Contrary to the submissions of the Walsh plaintiffs, I see none of these defects in the Setterington action. [25] In Lacking v. Armtec Infrastructure, the Ontario Divisional Court dealt with the appellant's argument that the motion judge erred in parsing the action too ?nely and assessing the merits of the actions. The Divisional Court stated: 25 It is always preferable on a carriage motion to avoid any analysis of the merits of including or excluding a particular claim or defence and the strategy of counsel in doing so. However, it is apparent from reviewing the authorities that some carriage motions are incapable of being resolved by merely considering whether claims have "glaring de?ciencies" or can be said to be "frivolous." Sometimes it is necessary for the motion judge to conduct a more detailed and nuanced analysis, because there is no other way to properly distinguish between the actions Page:13 and choose the proceeding that is in the best interests of the class. That does not mean that in doing so that motion judge has departed from the test established in Settermgton, or the principles underlying that decision. We do not consider those cases that have undertaken such an analysis to have adopted a different test. Neither are we of the view that the motion judge in this case adopted a different test. Both the test he identi?ed and the approach he took were fully consistent with [26] In Joe! Menu Foods Genpar Ltd, 2007 BCSC 1482, [2007] B.C.J. No. 2159 (QL), the British Columbia Supreme Court considered the theories advanced in each of the competing claims and determined that the court is entitled to take into account how such theories affect the likelihood of certi?cation. In that case the court found that ?less is more" and concluded that a more narrowly construed claim against fewer defendants maximized the likelihood of certi?cation of the proposed class action and facilitated the expeditious prosecution of the claims of the proposed class members (para. 83). [27] I agree with the submission of counsel in the Thompson action that the focus of the court on a carriage motion is which action is in the best interests of the proposed class as opposed to what has been referred to as a ?beauty pageant" between the rival law ?rms who describe their current talents and past accomplishments. (See: Sharma and Manama-Hf v. Barrick Gold Corp, 2014 ONSC 6516, 124 OR. (3d) 145; aff?d. 2015 onsc 2717, 126 o.R. (3d) 296 (Div. ANALYSIS AND DEQISION [28] The overriding principle to be applied in carriage motions is to determine the best interests of the putative class members having regard to the objectives of the CPA and fairness to the defendants. Page:14 [29] In this case the competing law ?rms have extensive experience in prosecuting class action claims. In the various authorities that were included in the books of authorities ?led by the parties there is often very little difference between the proposed law ?rms and the proposed representative plaintiffs. In arriving at my decision, I considered all of the factors enunciated by Cumming J. in Vitapharm as well as other decisions noted above. I placed particular emphasis on a number of relevant factors which I will review below. Nature and Scope of Causes of Action Advanced and Thegries Advanced by Counsel as Beinq Supportive of the Claims [30] One signi?cant difference between the two proposed class proceedings is that the Meeches action names only Canada as a defendant and the Thompson action names both Canada and Manitoba as defendants. The other major difference is the number of causes of action that are alleged in the two proposed class actions. The Meeches action advances a cause of action based on breach of ?duciary duty and negligence. The various causes of action proposed in the Thompson action were outlined above and include causes of action which are novel and potentially problematic. For example, claims for cultural genocide, crimes against humanity, breaches of the Rome Statute and breaches of the United Nations Con ventibn on the Prevention and Punishment of the Crime of are causes of action which are questionable and will probably be met with a motion to strike by the defendants in the Thompson action. That will undoubtedly result in additional cost and further delay in the Thompson action Page: 15 proceeding and in my view, not serve to secure the just, most expeditious and least expensive determination of the proposed class proceeding. [31] The authorities noted above establish that the analysis that should be undertaken when the court is asked to choose between proceedings must be undertaken on a qualitative rather than a quantitative basis. [32] Applying these principles without making any determination as to which claim is most likely to succeed, I am concerned that some of the potential causes of action advanced in the Thompson action may be, as pointed out by the consortium, ?frivolous or doomed to failure on their face". [33] In my view, the causes of action advanced in the Meeches action are based on ?duciary duty and negligence, causes of action that are known at law and have been established in other cases. One only need examine the various decisions in Brown v. Canada (Attorney General), 2010 ONSC 3095, 94 C.P.C. (6th) 276; 2011 ONSC 1193, [2011] No. 940 (Div. Ct.) 2011 ousc 7712, 31 cm. (79) 410 (Div. 2013 ONCA 18, 31 C.P.C. (7th) 156; 2013 ONSC 5637, 45 C.P.C. (7th) 186; 2014 ONSC 1583, [2014] OJ. No. 1128 (Div. Ct.) and 2014 mm 6967, so C.P.C. (7th) 229 (Div. Ct.) to appreciate the problems associated with analyzing the causes of action relating to the 60's scoop. The Brown case dealt with similar proposed class proceedings in Ontario and the court reviewed de?ciencies that were identi?ed in the proposed causes of action at certi?cation hearings. Ultimately, a class action was certi?ed in Page: 16 Ontario against Canada based on causes of action of breach of ?duciary duty and neg?gence. [34] It is clear that the purpose of a carriage motion is not to overly analyze the causes of action, but on the basis of my review of the nature and scope of the causes of action advanced in both actions, it is my opinion that the best interests of the putative class members while ensuring fairness to the defendants favours the approach adopted in the Meeches action. In my view, proceeding with the Meeches action would more likely secure the just, most expeditious and least expensive determination of the potential class proceeding on its merits. [35] The plaintiffs in the Thompson action submit that the Meeches action is defective in that it relies on the Canada-Manitoba Child Welfare Agreement dated September 2, 1966 between Canada and Manitoba as the basis for framing the class. The plaintiffs in the Thompson action submit that the agreement should not be arbitrarily chosen as the date for framing the proposed class. They submit that the operational wrongdoing originates with the 1951' Indian Act amendment which resulted in Manitoba using its Child Welfare laws to apprehend and place class members for adoption. They submit that the theory advanced by the plaintiffs in the Meeches action is ?fundamentally flawed". [36] Further, the plaintiffs in the Thompson action submit that the Meeches action is flawed in that it only names Canada as a defendant. The Thompson action plaintiffs submit that Manitoba is a proper party responsible for the implementation of the plan of apprehending children of Aboriginal peoples in Page:17 Canada from their families and placing them in foster homes or adoption with non-Aboriginal parents. [37] I am not satis?ed that the class proposed by the plaintiffs in the Meeches action is fundamentally flawed or intended to exclude Aboriginals residing in Manitoba who may have a cause of action. The purpose of the carriage motion, as pointed out above, is not to overanalyze matters that will be reviewed in more detail at the time of certi?cation. One issue that will require close scrutiny at the certi?cation hearing is the proposed class de?nition. [38] I agree with the plaintiffs in the Thompson action that there may be a cause of action against Manitoba. However, the possible cause of action based on the manner in which Manitoba implemented the placement of Aboriginal children during the relevant time is dif?cult to discern on a review of the statement of claim in the Thompson action. Although I am not making a determination on the issue at this stage, I have concern that the possible cause of action alleged against Manitoba based on an alleged ?duciary duty owed by Manitoba and an alleged breach of that duty are vague and not clearly pied. It is not the court?s function to embark upon a detailed analysis as to whether a claim is likely to succeed at this stage. Instead, the overriding principle is to determine what is in the best interests of the putative class members having regard to the objectives of the CPA and ensuring fairness to the defendants. Page: 18 [39] As noted in the Setterington decision ([2006] OJ. No. 376), the mere inclusion of more defendants is not suf?cient to provide a basis for the preference of one potential class proceeding over another. [40] In terms of the theories advanced by counsel as being supportive of the claims, I conclude that in ?less is more" and a more narrowly construed claim against fewer defendants will increase the likelihood of certi?cation and facilitate the expeditious prosecution of the claims of the proposed class members. I accept that the Meeches action is the preferred approach. [41] I am not satis?ed that if the Thompson action is stayed that the plaintiffs in that action and the proposed members of am,r class would be left without a claim. Those are issues that will be scrutinized in greater detail at the certi?cation motion when the court reviews the proposed class de?nition, the representative plaintiffs for the class, the nature of the claims asserted, the common issues for the proposed class, the manner in which and the time within which a class member may opt out of the proceeding and whether the proposed class proceeding requires amendment before the proceeding is certi?ed. (See sections 8 and 9 of CPA.) The State of Each Respective Action, Including Preparation [42] The plaintiffs in both actions and their legal counsel claim that a signi?cant amount of work has been done to proceed with the proposed class proceedings. The consortium has entered into an agreement with regard to the division of work, time and effort and disbursements to prosecute the Meeches Page:19 action. Since ?ling the statement of claim on April 20, 2016, the af?davit of Jonathan Ptak af?rmed May 17, 2016 (Ptak af?davit) provides that Koskie Minsky communication department has received and responded to enquiries from approximately 30 putative class members. As well, co-counsel in the consortium, Troniak Law, has advised that they have formally interviewed 103 putative class members and have been in communication with several hundred more putative class members. [43] In the Thompson action, numerous af?davits have been ?led by the plaintiffs and other putative class members. The plaintiffs in the Thompson action rely upon an affidavit sworn by Liesa Covill sworn May 19, 2016. At para. 3 of her af?davit, Ms. Covill swears that Merchant Law Group (MLG) and support staff ?have created numerous questionnaires, notes, and other memorandum (sic) in paper form respecting their communications with the class members." She states Roch Dupont alone has docketed 459 hours interviewing ?victims?, 130 hours interviewing ?plaintiffs? and 63 hours drafting or reviewing questionnaires. Her af?davit also refers to class members sending in volumes of factual documents to MLG which are summarized in her af?davit. Her af?davit further references the fact that MLG has contacted and retained experts including Trace DeMeyer. [44] On May 5, 2016, the plaintiffs in the Thompson action ?led a notice of motion seeking certi?cation of the Thompson action as a class proceeding pursuant to the CPA. In support of that notice of motion an af?davit of David Page: 20 Chartrand sworn May 21, 2015 was ?led. Although that notice of motion was shown as being returnable on June 17, 2016, the motion for certi?cation did not proceed. That motion was adjourned and submissions were received on the carriage motion ?led by the plaintiffs in both actions in accordance with the direction made at the first case management conference. [45] The plaintiffs in the Thompson action allege that they are ready to proceed to certi?cation whereas the plaintiffs in the Meeches action are not. In my view, both actions are close to the same stage and I consider these factors to be neutral. However, the fact that the ?rst Thompson action was ?led in 2009 and no steps were taken to pursue that claim in a timely manner is cause for some concern. The plaintiffs in both actions are now arguing that these claims are urgent and must proceed expeditiously. I am not satis?ed that MLG has moved in a timely manner with the ?rst Thompson action or the second Thompson action. [46] Section 2(3) of the CPA provides that a motion seeking certi?cation is to be made within 90 clays after the close of pleadings or with leave of the court at any other time. No certi?cation motion was ?led until May 5, 2016. There was nothing preventing the plaintiffs in the Thompson action from ?ling a notice of motion seeking certi?cation much earlier than May 2016. The delay in proceeding with a motion for certi?cation is not in the best interests of the putative class members and is inconsistent with the requirements of the CPA. I am also not satis?ed that MLG has provided a reasonable explanation for the Page: 21 delays in proceeding with the motion for certi?cation. That is a factor that I took into account in determining which group should have carriage of the proposed class proceeding. [47] Once this decision is released, timelines will be set to expedite hearing a motion for certi?cation. The Number, Size and Extent of Involvement of the Proposed Representative Plaintiffs [48] The proposed representative plaintiff in the Thompson action is David Chartrand. Mr. Chartrand describes himself as an active member of the Aboriginal community and having a commitment to the advancement of Aboriginal people?s welfare. There is no question that he is a strong advocate for M?tis and Aboriginal people and has had signi?cant involvement working with MLG respecting the proposed class proceeding. [49] The proposed representative plaintiffs in the Meeches action are Priscilla Meeches and Stewart Garnett. Although neither of the plaintiffs have yet to swear an af?davit in the Meeches action the statement of claim describes the plaintiffs? experiences in paragraphs 25 to 32. [50] The Ptak af?davit attaches as Exhibits A and the contingency retainer agreements entered into with the plaintiffs in the Meeches action. The retainer agreements describe the plaintiffs' involvement and obligation to act in the best interests of the class as de?ned in the retainer agreement. [51] In my view, the proposed representative plaintiffs in both the Thompson action and the Meeches action may be suitable representative plaintiffs in the Page:22 proposed class action proceeding. Although more evidence could have been ?led in the Meeches action regarding the involvement of the proposed plaintiffs there is nothing to indicate that the plaintiffs in the Meeches action would do anything other than fairly and adequately represent the interests of the proposed class. No distinction of signi?cance can be drawn on the basis of the record that has been ?led, and I consider this to be a neutral factor. Relative Prioritv of Commencing thi Class Actions [52] There is no question that the Thompson action was commenced prior to the Meeches action. The Province of Quebec is the only province in Canada that has adopted a ??rst to ?le? rule. Courts in Ontario and in most jurisdictions across Canada have rejected that rule. Accordingly, I did not give much, if any, weight to the fact that the Thompson actions were ?led prior to ?ling the Meeches action. The fact that the Thompson actions were ?led prior to the Meeches action and no steps were taken by those plaintiffs to seek certi?cation in a timely manner, as noted above, worked as a negative factor for MLG in deciding the carriage motion. The Resources and Experience of Counsel [53] Both the consortium and MLG have considerable experience prosecuting class proceedings. There is no doubt that they both have experience, resources and expertise as class counsel. The consortium stated speci?cally at page 20 of their motions brief as follows: the KMT Consortium has collectively acted in more than 100 class proceedings, including many of the leading Crown liability or Aboriginal law-related class actions; Page: 23 the KMT Consortium experience concerns not only the ?rst mandatory step of certi?cation, but considerable common issues trial experience as well, having prosecuted four (4) common issues trials and brought two (2) to the doorsteps of trial; in the last eight (8) months alone (or since November 2015), the KMT Consortium has recovered some $112 million on behalf of its client class members in just three (3) actions; the KMT Consortium has over 50 lawyers between them, nine (9) of which are speci?cally dedicated to a class proceedings plaintiffs? side practice, plus a sophisticated communications department which is essential to properly service class members? requests for assistance; and the KMT Consortium is a long time stakeholder in litigation concerning Aboriginal persons, including individual residential schools claims, having resolved the claims of over 1,000 survivors. [54] I agree with the plaintiffs in the Thompson action that the focus on a carriage motion should not boil down to a ?beauty pageant? between competing or rival law ?rms. That said, MLG submits that because it has 12 of?ces across Canada with more than 100 support staff that it will be better able to coordinate the class that resides across the country. As well, they have numerous lawyers who devote a signi?cant amount of their time to class actions. MLG also submits that it has extensive experience advancing claims of Aboriginal persons. They submit that they represented 15,043 Indian Residential School clients. [55] I was not impressed by the numerous references and/or complaints in the motions material ?led in both actions about the opposing law ?rms' weaknesses or alleged misconduct in other proceedings. The focus should not amount to an exercise of what I will refer to as mudslinging at opposing counsel, as such practice, in my view, is unbecoming professional conduct. The focus should Page:24 always be on the resources and experience of proposed counsel to act in the best interests of the putative class. [56] On the basis of my review of all of the af?davit evidence ?led, both the consortium and MLG have the resources and experience to act as counsel in class proceedings. It is always a dif?cult task for the court where, unfortunately, counsel have not agreed to cooperate in the carriage of the action, to choose the group that will best serve the interests of the putative class. The selection of lead counsel must not only serve the best interests of the putative class but must also serve the policy objectives of the CPA and ensure fairness to the defendant or defendants. Although I considered this case to be a close call, in my opinion, the knowledge, expertise, experience and resources of the consortium tips the balance in their favour. Progosed Class Definition and Prosgects of Certification [57] Submissions were advanced by the plaintiffs in both actions regarding the proposed class de?nitions. The time to consider whether the pleadings disclose a cause of action, whether there is an identi?able class, whether the claims raise a common issue and whether there is a person who is prepared to act as a representative plaintiff is prescribed in s. 4 of the CPA. On a certi?cation motion in accordance with 3. 5(1) of the CPA, ?[T]he court may adjourn the motion for certi?cation to permit the parties to amend their materials or pleadings, or to permit further evidence to be ?led." It is also important to emphasize that in accordance with 5. 5(2) of the CPA, order certifying a proceeding as a class Page: 25 proceeding is not a determination of the merits" of the claim. The class de?nition will be considered when the certi?cation motion proceeds. [58] This is not the ?rst case being heard across Canada proposing a class action relating to the 60's scoop. The Ontario courts have certi?ed a class proceeding in the Brown action. The experience in the Brown case, although not binding in this court, will certainly be persuasive in terms of the manner in which the class proceeding, if certi?ed, will proceed in Manitoba. [59] I accept that the Meeches action as framed is more consistent with the approach certi?ed as a class proceeding in the Brown case than the Thompson action. In my view, the Meeches action has a greater prospect of being certi?ed than the Thompson action. A number of the causes of action proposed in the Thompson action, as noted above, will add needless complexity and advancing them will not serve to secure the just, most expeditious and least expensive determination of the proposed class proceeding. CONCLUSION [60] Taking all of the considerations set out above into account, in my view, the appropriate exercise of my discretion is to permit the Meeches action to proceed with its counsel as the lead counsel in the proposed class proceedings. The selection of the Meeches action and the consortium to act as lead counsel will, in my opinion, best serve the interests of the putative class and the policy objectives of the CPA. Lead counsel should frame their motion for certi?cation to ensure that all proposed members of the class will include the members of the Page:26 Thompson action. As stated at the hearing, I would have expected legal counsel to cooperate in a manner that would best serve the interests of the putative class. I encourage that process to continue. [61] I am not satis?ed that permitting both the Meeches action and the Thompson action to proceed to a certi?cation hearing would serve the best interests of the proposed class and meet the objectives of the CPA. In my view, granting such an order will unnecessarily complicate the process, may cause one of the defendants to ?le motions to strike, probably delay the matter proceeding to certi?cation and would not be in the best interests of the putative class. [62] Accordingly, I make the following additional orders: 1. The Thompson action is stayed as a proposed class action proceeding; 2. A declaration is granted that no other proposed class action may be commenced in Manitoba in respect of the facts pleaded in the Meeches action without leave of the court; 3. Leave is granted generally to amend the Meeches statement of claim to address the issue that the proposed members of the class ought to include as many Aboriginal persons affected by the 60?s scoop as possible, including the members of the Thompson action; and 4. There shall be no order of costs on the carriage motions. Pagez27 [63] The consortium is directed to contact the trial coordinator to set a date for the next case management conference to be held as soon as is reasonably possible.