ONTARIO SUPERIOR COURT OF JUSTICE

Transcription

1 CITATION: Mancinelli v. Barrick Gold, 2014 ONSC 6516 COURT FILES : CV CP CV CP CV CP DATE: ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, LUIGI CARROZZI, MANUEL BASTOS, JACK OLIVEIRA and COSMO MANELLA, in their capacity as THE TRUSTEES OF THE LABOURERS' PENSION FUND OF CENTRAL AND EASTERN ONTARIO, MIKE GALLAGHER, JOE REDSHAW, RICK KERR, ALEX LAW, BRIAN FOOTE, RON MARTIN, JOHN HARTLEY, NICK DEKONING and JOE KEYES, in their capacity as THE TRUSTEES OF INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793, MEMBERS PENSION BENEFIT TRUST OF ONTARIO and MICHAEL WIENER - and BARRICK GOLD CORPORATION, AARON REGENT, JAMIE SOKALSKY, AMMAR AL-JOUNDI and PETER KINVER AND BETWEEN: THE TRUSTEES OF THE DRYWALL ACOUSTIC LATHING AND INSULATION LOCAL 675 PENSION FUND - and BARRICK GOLD CORPORATION, AARON W. REGENT, JAMIE C. SOKALSKY, AMMAR AL-JOUNDI and PETER KINVER AND BETWEEN: ROYCE LEE - and

2 - Page 2 - BARRICK GOLD CORPORATION, AARON W. REGENT, JAMIE C. SOKALSKY and AMMAR AL-JOUNDI Carriage Motion under the Class Proceedings Act, 1992 BEFORE: Justice Edward P. Belobaba COUNSEL: Kirk Baert, Celeste Poltak and Michael Robb for the plaintiffs in the Labourers Pension Fund Action CV CP Joel Rochon, Peter Jervis, Suzanne Chiodo, Steven Klein and Aroosha Sadaghianloo for the plaintiffs in the DALI Pension Fund and Lee Actions CV CP and CV CP Kent Thomson and Luis Sarabia for the defendants HEARD: November 12 and 13, 2014 CARRIAGE MOTION DECISION [1] In this carriage motion, two groups of leading class action firms are competing for carriage of a proposed multi-billion dollar class action against the defendant gold mining company and the four named executives. [2] In one corner is the Koskie Minsky Group ( KMG ), consisting of Koskie Minsky, Siskinds, Sutts Strosberg, and Groia and Company. In the other is the Rochon Genova Group ( RGG ), consisting of Rochon Genova, the Merchant Law Group and Rosen Naster. Each group submits that it would be in the best interests of the proposed class, fair to the defendants and consistent with the policy objectives of the Class Proceedings Act 1 if carriage is granted to them and the actions brought by the other group are stayed. 1 Class Proceedings Act, 1992, S.O. 1992, c. 6 ( CPA ).

3 - Page 3 - [3] For the reasons set out below, carriage is awarded to RGG. This was not a difficult decision. On the two significant differentiating factors, theory of the case and state of preparation, RGG and the DALI action clearly and decisively came out ahead. The DALI and Lee actions are consolidated and may proceed. The Labourers action is stayed. Background [4] In April and May 2013 and over the several months that followed, Barrick Gold publicly disclosed that mining operations at its Pascua-Lama mining project ( the Mining Project ) in Chile had been suspended by orders of the local court and the environmental regulator. The company s share prices dropped dramatically. And, as is often the case when share prices plummet following a corrective disclosure, class action lawyers, as well as disappointed investors, began probing for evidence of misrepresentation in previous corporate disclosures that might provide grounds for a class proceeding. [5] In short order, numerous proposed class actions were filed in Canada and the U.S. Three such actions remain active in Ontario: the Lee action commenced on April 15, 2014 by the Merchant Law Group, the Labourers action commenced on April 24, 2014 by KMG, and the DALI action commenced on September 5, 2014 by Rochon Genova. RGG intends to consolidate the Lee and DALI actions if granted carriage. [6] The contrast in the scope and content of the competing actions is significant. Both are grounded in the common law and Part XXIII.1 of the Securities Act, 2 and allege negligent misrepresentations relating to the development and operation of the Mining Project. The KMG action, however, focuses only on alleged misrepresentations about environmental compliance. The RGG DALI action alleges misrepresentations in three related areas: environmental compliance, the capital expenditure or Capex budget, and the defendant s financial statements. The RGG action also includes claims of conspiracy and fraudulent concealment. The class period covers just over four years from May 2009 to November [7] Both the KMG and RGG actions seek damages in the billions of dollars. If the proceeding is certified, it will be one of the largest securities class actions in Canada. 2 Securities Act, R.S.O. 1990, c. S.5.

4 - Page 4 - The applicable law [8] The applicable law is not in dispute. In deciding carriage of competing class proceedings, the court s objective is to make the selection that is in the best interests of the class, while being fair to the defendants and consistent with the objectives of the Class Proceedings Act, The objectives of a class proceeding are access to justice, behaviour modification, and judicial economy for the parties and for the administration of justice. 4 [9] Courts have generally considered seven non-exhaustive factors in determining which action should proceed: (1) the nature and scope of the causes of action advanced; (2) the theories advanced by counsel as being supportive of the claims advanced; (3) the state of each class action, including preparation; (4) the number, size and extent of involvement of the proposed representative plaintiffs; (5) the relative priority of the commencement of the class actions; (6) the resources and experience of counsel; and (7) the presence of any conflicts of interest. 5 [10] As I advised counsel during the course of the hearing, if the factors just listed proved insufficient in generating a measurable and objective difference between the competing groups of law firms, I would have added a further differentiating factor: the price that counsel would charge the class for their legal services. I noted from the retainer agreements that both KMG and RGG intended to charge a 30 percent contingency fee. Would either side be willing to reduce their fee to say 25, or 20, or 10 percent if granted carriage? As is often the case with product purchase decisions, when the goods or services being compared are otherwise indistinguishable, price can be the determinative factor. [11] As it turned out, however, it was not necessary to institute a reverse auction because the conventional factors listed above proved more than sufficient in finding that RGG was the better choice. As already noted, I had no difficulty concluding that it is in the best interests of the class members that RGG be granted carriage of this proposed class action. 3 Smith v. Sino-Forest, [2012] O.J. No. 88, at para. 16, citing Vitapharm Canada Ltd. v. F. Hoffman-La Roche Ltd., [2000] O.J. No (S.C.J.), at para. 48; Setterington v. Merck Frosst Canada Ltd., [2006] O.J. No. 373 (S.C.J.), at para. 13; Sharma v. Timminco Ltd. (2009), 99 O.R. (3d) 260 (S.C.J.), at para Smith, supra, note 3, at para Ibid., at para. 17.

5 - Page 5 - [12] The applicable case law also makes two further points that are particularly relevant here: the first is that although it is correct to say that a carriage motion will decide which law firm will represent the plaintiff, the task of the court is not to choose between the competing firms 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; 6 and, the second is that it is inappropriate on a carriage motion for the court to embark upon an analysis as to which claim or claims are most likely to succeed. 7 I will return to both of these points in the discussion that follows. Neutral factors [13] There was little to no dispute about the proposition that the following factors provided no differentiating value of any significance and were basically neutral: (i) The representative plaintiffs: Both KMG and RGG are proposing institutional investors (such as the Labourers Pension Fund, the Operating Engineers Pension Fund and the DALI Pension Fund) that are expert and experienced class action warriors, and individual investors (Michael Wiener and Royce Lee) who are sophisticated and committed. (ii) (iii) The relative priority of the commencement of the class actions: As I have already noted, two of the competing actions (Labourers and Lee) were commenced in April, and the third (DALI) in September of this year. However, I find on the material before me that all three actions were actually in play at about the same time, in the spring of this year. In any event, Ontario is not a first to file jurisdiction. This factor is neutral at best. The resources and experience of counsel: Carriage motions are not law firm beauty contests. There is no doubt that KMG (thanks to Siskinds) has been involved in more securities class actions than RGG. But RGG also has a significant track record in this area and has more than enough expertise and experience to do an excellent job as carriage counsel. Indeed, as I stated several times during the hearing of the motion, any one of the elite class action firms involved herein Koskie Minsky, Siskinds, Sutts 6 Ibid., at para. 19, citing Tiboni v. Merck Frosst Canada Ltd., [2008] O.J. No (S.C.J.), aff'd [2009] O.J. No. 821 (Div. Ct.). 7 Ibid., at para. 29; Setterington, supra, note 3, per Winkler J., as he then was, at para. 19.

6 - Page 6 - Strosberg, Rochon Genova or Merchant have more than enough expertise and experience on their own to do an excellent job as carriage counsel. And if one adds Messrs. Groia or Naster to provide securities law expertise, nothing more is needed. I find on the material before me that the class members would be well served with either KMG or RGG as class counsel. (iv) Conflicts of interest: no such allegations have been advanced at this time. 8 (v) Funding arrangements: KMG has a third-party funding arrangement already in place to cover costs, but I have no doubt that RGG will be able to do the same in short order. This is not a significant differentiating factor and KMG has not suggested otherwise. Determinative factors [14] This carriage motion turns on two points of comparison: the causes of action or claims being advanced, and the state of preparation. As discussed in detail below, when one compares the competing actions and law groups on the basis of these factors the claims being advanced and the state of readiness one has no difficulty deciding the motion in favour of RGG. I will discuss each of these points in turn. (1) The claims being advanced [15] As already noted, the KMG action is advancing a single claim that focuses on the environmental violations. The Labourers action alleges that the defendant misrepresented that the Mining Project was in compliance with Chilean environmental regulations and environmental permits. This resulted in material understatements in the cost and time required to make the mine operational and artificially inflated share prices. [16] RGG in the DALI action is advancing three claims: i) Misrepresentations relating to the environmental violations and specifically the conditions imposed in the 2006 environmental permit which authorized the construction and operation of the Mining Project; 8 The defendants raised a possible conflict issue, but then deferred their submissions on this point until after the carriage motion has been decided.

7 - Page 7 - ii) Misrepresentations relating to overall costs and completion time estimates, in particular the understatement of the Capex budget, which was initially pegged at $2.8 to $3 billion but then ballooned to over $10 billion; iii) Misrepresentations in the defendant s financial statements, including alleged violations of accounting standards relating to timely impairment write-downs. [17] The RGG action is also alleging conspiracy and fraudulent concealment. [18] KMG argues that by focusing only on the environmental misrepresentations, the Labourers action will make for a simpler and more streamlined litigation that will be resolved in a more expeditious and less expensive fashion. The two additional claims advanced in the DALI action, says KMG, are kitchen sink claims that will add several years to the proceeding and will be more difficult and expensive to prove the consequences of which will be borne by the members of the class. In short, says KMG, the simpler, more focused Labourers action is more likely to get leave under s of the Securities Act, 9 more likely to get certified and overall more likely to succeed. [19] RGG responds by noting that no one can predict at this stage of the proceeding which claim or claims are more likely to succeed; that each of the three claims are viable and have significant evidentiary support; and that it is in the best interests of the class that the most comprehensive action be advanced. [20] In my view, the Capex and accounting claims are not kitchen sink type claims. On the material before me, I am satisfied that both are viable claims that are supported by the evidence collected to date. RGG has included preliminary expert reports in its motion record. Peter Jones, a senior Canadian mining executive retained by RGG, concludes on the evidence that he has reviewed to date that the defendant knew about the initial inadequacy of its Capex budget and the expected production delays long before it disclosed those problems to the public. Professor Gordon Robertson, the KPMG Chair of Accounting at the Rotman School of Management, also retained by RGG, concludes in his filed report that the defendant misrepresented key information relating to the Mining Project in its financial statements during the class period, failed to take timely impairment write-downs and also failed to identify weaknesses in its internal controls. 9 Supra, note 2.

8 - Page 8 - [21] The conspiracy claim also has evidentiary support and provides an additional basis of common law liability and damages that are not subject to any statutory caps as set out in the Securities Act. 10 Further, the conspiracy claim may be required to help lift the corporate veil if the defendant decides to draw a distinction between itself and its Chilean subsidiary that owns and operates the Mining Project. I agree with KMG that no one wants to be accused of being part of a civil conspiracy, but that is the risk of being an officer or director of a publicly-traded company whose financial disclosures have been impugned. Some comfort can be found in the fact that conspiracy is a routine pleading in many securities class actions. 11 [22] As for fraudulent concealment (plus special circumstances and discoverability), the RGG pleading makes clear that these doctrines are only intended to address potential limitation problems. These doctrines are important, says RGG, because fraudulent concealment and special circumstances may operate to extend the limitation periods and protect the statutory claims of class members who purchased securities before April 15, 2011 (three years before the Lee action was commenced). Discoverability, which applies to the common law claims of negligent misrepresentation and conspiracy, would extend the two-year limitation period, and protect class members whose claims relate to the purchase of securities prior to April RGG also goes on to argue that by failing to plead these limitation-related doctrines, the KMG action is itself glaringly deficient because it prejudices the statutory claims of all class members who bought shares before April 2011 and the common law claims of those who bought shares before April [23] I note that RGG has provided a detailed analysis to support these submissions. For my part, I do not have to adjudicate the validity of RGG s submissions about the need for the conspiracy claim or the limitations-related savings doctrines of fraudulent concealment, special circumstances and discoverability. It is sufficient for me to find, as I easily do on the material before me, that each of these claims has a strong rationale and is genuinely viable. Indeed, the same can be said about all of the claims being advanced in the RGG action. [24] At bottom, the KMG submission is about likelihood of success. But consider the following. Few would disagree with the proposition that the leave and certification hurdles are quite low. To clear these preliminary hurdles with a single and focused claim, 10 Securities Act, supra, note 2, s For example, Carom v. Bre-X Minerals Ltd., (1999) 44 O.R. (3d) 173, aff d 2000 CanLII (C.A.); Silver v. Imax Corporation, 2009 CanLII (S.C.J.); McKenna v. Gammon Gold Inc ONSC 6630; and Cannon v. Funds for Canada Foundation 2012 ONSC 399.

9 - Page 9 - only to fail at the common issues trial or beyond is obviously not in the best interests of the class. When KMG argues that the simpler and more streamlined environmental compliance claim is more likely to succeed, it must be looking beyond the leave and certification motions. It must be saying to this court that the environmental compliance claim is more likely to result in an expeditious settlement or litigated outcome standing alone than when coupled with the Capex or accounting claims. [25] But the case law is clear that a carriage motion judge is in no position to decide which claim or claims are more likely to succeed and, indeed, that such an assessment should not even be attempted. Here is how Winkler J. put it in Setterington v. Merck Frost: 12 The purpose of a carriage motion is not to parse the action finely or overly analyze it for purposes of comparison but rather to scrutinize each for any glaring deficiencies... 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. 13 [26] I pause here to expand upon the point just made. The reason why it is a bad idea on the carriage motion to allow the court to enter into the merits of the action and assess which action or claim is more likely to succeed is three-fold: (1) no one, including the carriage motion judge, can credibly predict how the litigation will unfold and which claim or claims will ultimately succeed; (2) it is unfair and inappropriate to undertake this revealing analysis in full view of defence counsel who are routinely allowed to be present on carriage motions; and (3) it makes no sense that a much more rigorous and meritbased scrutiny of the pleadings should be allowed at the carriage motion when it is not allowed at certification. 14 [27] In my view, Winkler J. got it right. Carriage motion judges should only review the competing pleadings to determine if there are any glaring deficiencies or obvious defects 12 Setterington, supra, note Ibid., at para. 19. Also see Perell J. in Smith, supra, note 3, at para. 307: A carriage motion is not the time to determine whether an action will satisfy the criteria for certification or whether it will ultimately provide redress to the class members or whether it would be the preferable procedure or the most expeditious and least expensive procedure to resolve the dispute. 14 Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, at para. 102: [t]he certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action.

10 - Page 10 - (my words). Obvious defects could include, in some circumstances for example, an unsatisfactory class definition, 15 an unwieldy or unworkable class period, 16 a needlessly provocative claim, such as fraudulent misrepresentation, 17 or a claim such as unjust enrichment or waiver of tort that on its face only adds unnecessary complexity and costs. 18 If the carriage motion judge ventures beyond obvious defects, it becomes increasingly difficult if not impossible to avoid a merit-based analysis that in essence assesses the likelihood of success, which is not permitted. [28] This important proposition that a carriage motion judge cannot and should not decide which claim is most likely to succeed was recently affirmed by the Divisional Court in Locking v. Armtec Infrastructure: 19 Clearly, it is inappropriate at the carriage motion stage to get into the likelihood of success on the substantive merits with respect to any given cause of action, or as against any given defendant. That level of scrutiny is not even appropriate at the certification stage. 20 [29] But then, rather than simply affirming the rule as set out by Winkler J. in Setterington, and clearly limiting the zone of permitted review to obvious defects, the Divisional Court (after explicitly affirming the rule in Setterington) went on to suggest that a more detailed and nuanced analysis beyond obvious defects may be required in certain circumstances: 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 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 Setterington, or the principles underlying that decision Sharma, supra, note 3, at paras Ibid. 17 Smith, supra, note 3, at para. 309 et seq. 18 Simmonds v. Armtec Infrastructure, 2012 ONSC 44, at para. 30 (S.C.J.). 19 Locking v. Armtec Infrastructure, 2013 ONSC 331 (Div. Ct.) 20 Ibid., at para Ibid., at para. 25.

11 - Page 11 - [30] With respect, this proposition is a clear departure from the test established by Winkler J. in Setterington. It takes us down the wrong road. Once the carriage motion judge goes beyond obvious defects and embarks upon a more detailed and nuanced analysis of the competing actions, she is in essence assessing a claim s likelihood of success, which everyone agrees is not permitted at this stage of the proceeding. [31] If the concern is that there is no other way to properly distinguish between the actions and choose the proceeding that is in the best interests of the class, then the carriage motion judge should introduce a further differentiating factor such as pricing (and invite a reverse auction as discussed earlier) rather than engaging in the analysis suggested and pretending she is not assessing the likelihood of success. [32] But for the Divisional Court s decision in Locking, I would have applied Winkler J. s test in Setterington and would have concluded as follows. None of the additional claims pleaded in the RGG actions is glaringly deficient or fanciful or frivolous. None has any obvious defects. Since I cannot and should not assess the likelihood of success, that would have been the end of my analysis. I would have concluded, sensibly I think, that in a multi-billion dollar action against the world s largest gold mining company, it is in the plaintiffs best interest to plead all of the genuinely viable primary claims, and not just one-third of them. It is in the plaintiffs best interest to plead conspiracy and fraudulent concealment for the limitation-related reasons already discussed. I would have therefore concluded that the RGG actions provided a more comprehensive litigation framework, which is very much to the class members advantage. [33] However, I am bound by the decision in Locking, which suggests that I should do more than just look for obvious defects. As I read the decision, a more detailed and nuanced analysis may be needed in the three situations: (1) Where the two actions are similar in their strengths; 22 (2) Where there is no other way to properly distinguish between the actions and choose the proceeding that is in the best interests of the class; 23 (3) Where the only difference between two proceedings is the inclusion of a claim in one proceeding that is not in the other there must be some critical analysis of the claim and of why it is not included in one of the proceedings Locking, supra, note 17, at para Ibid., at para. 25.

12 - Page 12 - [34] The first two situations do not apply. This is not a case where the competing actions are similar in their strengths. The KMG action is advancing only one claim. The RGG actions are advancing three genuinely viable claims with evidentiary support, and two minor claims that are arguably valuable, and whose absence from the KMG action may itself be a glaring deficiency. Nor is this a case where there is no other way to properly distinguish between the actions and choose the proceeding that is in the best interests of the class. Here, there are at least two other ways to distinguish between the actions and choose the proceeding that is in the best interests of the class, namely the causes of action (already discussed) and the level of preparation (discussed below.) [35] The third suggested situation does apply, and I have already conducted the suggested analysis. KMG preferred the single claim action over RGG s three-claim action because, in their view, the latter s Capex and accounting claims would add unnecessary costs and complexity and the single environmental compliance claim is more likely to succeed. It is important to remember, however, that there is nothing inherently wrong with added costs and complexity provided the additional claims are genuinely viable. I have already found that each of the claims in the RGG actions are genuinely viable and are supported with evidence. And the likelihood of success of any of the claims being advanced cannot and should not be determined on a carriage motion. [36] Put simply, RGG decided not to put all its eggs in the environmental violations basket. They pleaded two additional claims, as well as conspiracy, to expand the reach of their action, and fraudulent concealment, discovery and special circumstances for limitation-related purposes. At this stage in the proceeding, no one, including KMG, can predict which of the three main claims will ultimately prevail at trial or have the most effect as a settlement lever. In my view, it is in the best interests of the class that the proposed class proceeding not be limited to one claim when three are genuinely available. I come to this same conclusion applying the rule in Setterington and the analysis suggested in Locking. [37] The cause of action/claims advanced factor clearly favours RGG. (2) The state of preparation [38] In my view, this is the single most important determinant. I find on the evidence before me that RGG has achieved a level of readiness and overall preparation that is 24 Ibid., at para. 20.

13 - Page 13 - measurably and objectively superior to that of KMG. It is therefore in the best interests of the class on this point alone that carriage be awarded to RGG. [39] Let me explain. [40] I begin by acknowledging that KMG has more than enough expertise and experience to know what has to be done to advance this action and that they would do so in an organized and sensible fashion. I also acknowledge that given the time, KMG could do what RGG has done to date. But they have not done so. [41] What KMG has done is this. They have reviewed the defendant s public disclosures, requisitioned and translated certain Chilean court and government documents, and have retained Chilean legal counsel, a private investigator, and several experts in areas such as mining, geology, 25 economics and damages. None of the lawyers or experts names have been disclosed; nor has any information about the tasks assigned or about what has been accomplished to date. The pleading in the Labourers action is detailed but in essence describes the environmental compliance claim by simply reciting and noting the alleged misrepresentations made by the defendant in its various public disclosures. [42] RGG, on the other hand, is demonstrably more prepared. The DALI statement of claim is not confined to a narrative that simply impugns the disclosure documents. The DALI pleading digs deeper and offers a much more informed and sophisticated understanding of the Mining Project and the controversy surrounding its development and operation, the ground-level impact and implications of the government-issued environmental permits, the scope and content of the environmental regulations and the paradigm shift in enforcement practices that eventually closed down the operation. [43] RGG achieved this demonstrably superior understanding of the allegations that drive the environmental compliance claim by doing the following. They began working on the action in May 2013, just after the key disclosures were made public by the defendant. Like KMG, RGG reviewed all of the defendant s disclosures and requisitioned and translated a large volume of Chilean judicial and administrative documents. But they did more. They retained one of the leading environmental lawyers in Chile who prepared a detailed report about the applicable environmental regulations, the shift in approach and enforcement in 2010 and the implications and impact on the Mining Project. 25 RGG says there are no geological issues in this case and that KMG s retention of a geology expert shows the latter s fundamental misunderstanding of what the case is about.

14 - Page 14 - [44] They travelled to Chile and met with numerous legal and governmental officials; attended relevant Chilean court proceedings; met with and interviewed a large number of potential witnesses from environmental NGOs, agricultural groups and indigenous communities, who have long opposed the Mining Project with protests, petitions, and lawsuits; visited the site of the Mining Project and surrounding areas allegedly affected by the mine s pollution; and retained an array of mining and financial experts, several of whom have already completed preliminary reports that were included (with names fully disclosed) in RGG s motion record. It is this hands-on effort on the part of RGG that best explains the detail and the deep understanding of the alleged environmental violations that is found in the DALI statement of claim. [45] The same superior level of understanding is found in RGG s discussion of the Capex claim and the accounting claim. To support the Capex claim (and its allegations of capital budget overruns, internal control system failures, and production and project management problems) RGG filed a copy of the preliminary report prepared by mining industry expert Peter Jones. In support of the accounting claim (and its allegations of accounting violations, in particular impairment write-downs) RGG filed a copy of the preliminary report prepared by Professor Gordon Richardson. Candace Preston, a wellknown shareholder damage expert, provided a preliminary opinion that there were statistically significant declines in the Barrick share price relating to the defendant s public disclosures and that these share price declines caused substantial shareholder losses. RGG also advise that additional experts in several other named categories have been retained but have not yet delivered their reports. [46] KMG minimized and even ridiculed these efforts. For example, KMG took the position that no experienced class action lawyer would ever file a preliminary expert report on a carriage motion and reveal such important evidence to the defendant so early in the proceeding, and that in doing so RGG had committed a rookie mistake. I do not accept this criticism for two reasons. One, experienced class action lawyers have filed expert reports on carriage motions; 26 and two, what counsel puts into a carriage motion record is at best a judgment call about how much evidence can safely be revealed at this stage of the proceeding. As RGG explained, it filed the expert reports to show their level of preparedness and that they were ready to go. If any of the experts are required to revise their preliminary opinions as more evidence becomes available, says RGG, so be it that is part and parcel of their continuing obligation to the court. 26 Wilson and Shah v. LG Chem, 2014 ONSC 1875, at para. 15.

15 - Page 15 - [47] In my view, KMG s criticism is unfounded. The expertise and experience of all counsel on this motion was at the highest level. No one made any rookie mistakes. Conclusion [48] RGG has more than enough expertise and experience to assume carriage of this class proceeding. It has pleaded the most comprehensive theory of the case by advancing three viable claims supported by an equally viable conspiracy claim and an arguably needed fraudulent conveyance claim. To date, it has conducted the more superior investigation and analysis of the facts and issues herein and is more prepared than KMG to assume carriage of this proceeding forthwith. [49] RGG has measurably and objectively differentiated itself as the better choice. [50] I therefore have no difficulty concluding that it is in the best interests of the putative class that RGG be granted carriage. Disposition [51] Carriage of the proposed class action is granted to the plaintiffs in the DALI action. RGG is appointed class counsel. The DALI and Lee actions are consolidated and the Labourers action is stayed. [52] RGG and KMG are directed to take all necessary steps to permanently stay or dismiss any parallel Canadian proceeding that they or their local agents have commenced and not to commence, instruct local agents to commence or otherwise permit, facilitate or encourage the commencement of any other parallel Canadian proceedings. The defendant requested this undertaking at the outset of the hearing and both sides agreed. [53] I make no order as to costs, which is the usual course in carriage motions. Belobaba J. Date: December 11, 2014