A recent decision from the Québec Superior Court has
stated that the "first to file" rule continues to dictate
the carriage of class actions within that province (except when it
is obvious that the best interests of the putative class members
are not the counsel's priority), until such time as the
Québec Court of Appeal changes the status quo.
c. Zimmer (Wainberg) concerned a motion to stay
one of two proceedings launched against Zimmer of Canada Limited
(Zimmer) for its allegedly defective hip replacement implants. Two
proceedings were launched by different plaintiffs: one who sought
to be the representative for all of Canada and alternatively for
Québec residents, and another who sought to be the
representative for only Québec residents. Zimmer did not
favour either motion as no substantive steps had been taken in
either; it only asked that one be stayed to avoid a multiplicity of
proceedings to include one representative plaintiff in mediation
Justice Gouin concluded that the first motion should proceed
because there was no significant difference between the two and
because it was filed first.
The motions against Zimmer were related to several proposed
class actions in Ontario, Alberta, British Columbia, New Brunswick
and Nova Scotia, some regional, some national, some opt-in and some
opt-out class actions. Recently in McSherry v Zimmer GMBH, an Ontario
regional class action plaintiff successfully argued that three
different national class actions motions originating in Ontario
should be stayed. In that decision, Justice Perell for the
Ontario Superior Court of Justice provided extensive commentary on
the issues arising from overlapping class actions in multiple
jurisdictions and the use of carriage and stay motions as
In Wainberg, Justice Gouin noted that some
Québec courts had applied an automatic "first to
file" rule to determine which overlapping class action should
proceed. However, in other cases, a discretionary approach was
applied in response to the practice of law firms filing overlapping
class actions in multiple jurisdictions, motivated by a desire to
"claim turf and secure carriage for law firms" rather
than to advance the interests of a class. Schmidt c. Depuy International Ltd.
(Schmidt)recently applied discretionary criteria for this
purpose. Leave to appeal that decision was granted and
the case is currently under reserve with the Québec Court of
Justice Gouin recognized that in Ontario, a list of factors are
applied by the courts when determining which class actions should
proceed; the factors are meant to provide for the best interests of
all putative class members and to ensure fairness to the
defendants. However, he concluded that these factors have not yet
been established in Québec and where there is no significant
difference between motions that would be detrimental to the class
members, the first motion to be filed should proceed.
Schmidt provides the Québec Court of Appeal with
an opportunity to determine if the first to file rule will continue
to be automatically applied in Québec.
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