Canada: Lessons To Be Learned From Two Recent Canadian Carriage Disputes

Last Updated: January 26 2012
Article by Brian P.F. Moher

A nationwide network of Canadian counsel recently settled two disputes related to the carriage of two multi-jurisdictional class actions against defendant corporations, Guidant and Medtronic. The two counsel groups ultimately joined together to form a North American alliance to prosecute both of the products liability class actions. It is significant that Counsel groups from both sides of the carriage contests had entered into arrangements with U.S. counsel, which included the sharing of documentary disclosure as well as litigation strategy. These settlements signify a new era of products liability litigation in Canada, where cross-border relationships will play key roles in the prosecution of international class actions.

Background to the Carriage Disputes

In Peter et al. v. Medtronic Inc. et al., the defendant, Medtronic, is facing claims arising out of defective implantable cardioverter defibrillators and cardiac resynchronization therapy defibrillators. The claim alleges that Medtronic knew in 2003 of a short-circuiting defect in the batteries of its defibrillators, yet continued to sell devices containing the defective batteries in order to deplete its existing stock. It is alleged that corrective action was not taken until 2005.

In Lefrancois et al. v. Guidant Corporation et al., Guidant must also answer claims that it sold defibrillators it knew to be defective, and that it failed to warn patients of the defects until 2005, several years after the defects were allegedly discovered. By way of background, in June 2003, Guidant's subsidiary Endovascular Technologies, Inc. pleaded guilty to ten federal felonies in the U.S. relating to selling misbranded medical devices, and failing to report over 2,600 system malfunctions and adverse events to the FDA. As part of the plea agreement, Guidant entered into a Corporate Integrity Agreement on June 30, 2003 with the Office of Inspector General for the Department of Health and Human Services. Guidant undertook as part of that contract to promote compliance among its officers, directors, and employees with U.S. medical device regulations. It is now alleged that Guidant breached that agreement.

The Carriage Disputes

Two separate counsel groups filed motions for carriage seeking approval of the Court to proceed as counsel on behalf of the putative plaintiffs in the Medtronic litigation. The same two counsel groups also filed motions for carriage of the Guidant matter. The Medtronic motion was argued before Madam Justice Alexandra Hoy of the Ontario Superior Court of Justice, on September 21, 2006, by members of a nationwide network of lawyers, including lawyers from

  • Toronto, Ontario
  • Windsor, Ontario
  • Vancouver, British Columbia
  • Calgary, Alberta
  • Montreal, Quebec
  • Halifax, Nova Scotia

Other Canadian courts have outlined that the factors a court should consider in determining who should be appointed as solicitor of record where there is a dispute over carriage of a class action. Those factors include:

  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, and whether they or their counsel have any conflict of interest or any potential conflict of interest;
  5. the relative priority of commencing the class actions; and,
  6. the resources and experience of counsel.1

In applying the foregoing factors, a court faced with a carriage motion in respect of multiple class proceedings should consider the best interests of the putative class members, fairness to the defendants, and the objectives of the Class Proceedings Act, 1992, S.O. 1992, c. 6.2 These objectives include:

  1. more efficient handling of potentially complex cases of mass wrong;
  2. improved access to justice for those whose actions might not otherwise be asserted; and
  3. to inhibit misconduct by those who might be tempted to ignore their obligations to the public.3

At the Medtronic carriage motion, Hoy J. was faced with deciding between two equally meritorious groups. The actions had been commenced by each counsel group within the same period of time. Both groups had invested significant time and effort into the advancement of the claims, and both had an adequate number of representative plaintiffs. In addition to allegations of negligence and failure to warn, both claims sought an accounting and disgorgement of Medtronic's revenues from the sale of the defective devices. One of the counsel groups also alleged conspiracy, while the other alleged that opposing counsel had a conflict of interest. Key among the counsel groups' submissions, however, were details of the U.S. alliances that had been forged with several major U.S. law firms, Rheingold Valet Rheingold Shkolnik & McCartney, Lieff Cabraser Heimann & Bernstein, Neblett, Beard & Arsenault, and Motley Rice. Among the U.S. alliances were major players from both the Guidant and Medtronic U.S. Multi- District Litigation, including co-lead plaintiffs' counsel as well as members of the Plaintiffs Steering Committees. Such U.S. counsel relationships, it was submitted, would allow for

  • access to experts, including doctors, scientists, engineers, financial analysts, and experts on corporate behaviour
  • access to resources, such as research staff, precedents, scientific research and litigation strategy
  • access to non-confidential documentary disclosure, deposition transcripts, written interrogatories, and other evidence from respective proceedings

The Importance of International Coordination

Ultimately, the two counsel groups arrived at an agreement regarding the carriage of the two actions before Hoy J. could release her decision on Medtronic, and before Cullity J. had the opportunity to hear the Guidant motion. Despite the absence of an actual decision, however, it is clear from these two carriage disputes that international relationships are of key importance to the Canadian litigation of global-scale mass torts. International alliances promote the efficient prosecution of products liability actions, which in the end benefits both plaintiffs and defendants.


1 Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd. [2000] O.J. No. 4594 (S.C.J.) at para. 49; Setterington v. Merck Frosst Canada Ltd., [2006] O.J. No. 376 (S.C.J.) at para. 15; Gorecki v. Canada (A.G.), [2004] O.J. No. 1315 (S.C.J.) at para. 11; Genier v. CCI Capital Canada. Ltd., [2005] O.J. No. 1135 (S.C.J.) at para. 2; Ricardo v. Air Transat A.T. Inc., [2002] O.J. No. 1090 (S.C.J.) at para. 21.

2 Vitapharm, supra, at para. 48; Gorecki, supra, at para. 12; Ricardo, supra, at para. 20.

3 As stated in Bendall v. McGhan Medical Corp (1993), 14 O.R. (3d) 734 (Gen. Div.) at para. 41.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.