In what circumstances will the court allow a law firm to argue the merits of the opposing pleadings in a carriage motion?
Ontario, Canada
The following excerpt is from Kowalyshyn v Valeant Pharmaceuticals International, Inc., 2016 ONSC 3819 (CanLII):
In the carriage motion in Sharma v. Timminco Ltd., supra at para. 90, I stated: On this motion, both law firms raised issues about the comparative merits and demerits of the pleadings, legal theories, and strategic battle plans of their rival. I am not to be taken as scolding them for this approach, but such an approach to a carriage motion puts the court in a difficult position because at this point in the respective proceedings, without hearing from the defendants, it is inappropriate, and, practically speaking, not possible to say much about: (a) the substantive merits of the competing theories and their chances of success; (b) substantive legal weaknesses in the causes of action and theories advanced; (c) whether the court would certify either action as a class proceeding ...
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