In his recent decision in McSherry v. Zimmer
GMBH, Justice Perell of the Ontario Superior Court
certified a national opt out class action that dovetails with a
related national opt in class action previously certified in
British Columbia. The decision highlights the willingness of
Ontario courts to take creative approaches to solve the dilemmas
posed when multiple class actions are brought across the country,
while still supporting the strong preference in Ontario for
national opt out class actions over opt in actions.
The 2012 Carriage and Stay Motions
In 2012, Justice Perell heard carriage and stay motions
in respect of competing proposed Ontario-based class actions
relating to an allegedly defective hip implant. At the time,
numerous other class actions concerning the same implant were in
various stages of progress across the country. One of the proposed
Ontario actions, McSherry v. Zimmer GMBH, was an
Ontario-only action pursued in cohort with the national opt in
class action Jones v. Zimmer GMBH that was
certified in British Columbia in 2011. The main competing action
was Mets et al. v. Zimmer GMBH, which was proposed as a
standalone Ontario-based national opt out class action.
Ultimately, Justice Perell held that the pairing of
McSherry and Jones would proceed. While Justice
Perell noted that his own opinion is that national opt out class
actions, generally speaking, are much better for access to justice
than national opt in class actions, he stated that he did not
regard the fact that Jones is an opt in national class
action as a reason for awarding carriage to Mets, as any
danger of Ontario residents being left out of Jones would
be sufficiently addressed by the regional McSherry and the
interests of class members in other provinces could be protected by
a robust notice program in Jones, or potentially by class
actions commenced in those other provinces. Class counsel for the
McSherry action also argued that they would, if necessary,
make McSherry a national opt out class action to address
any deficiencies in the difference between opt in and opt out
Justice Perell based his decision, in part, on the fact that
Jones had progressed further procedurally than
Mets, and it is, in Justice Perell's opinion, greatly
beneficial to class members to have a certified class action
whereby they can move from being a putative class member to being
an actual one. Justice Perell noted, however, that his decision may
have been different if he had heard these carriage motions two or
more years earlier when his choice would have only been between
actions that had not yet been certified.
The 2014 Certification Decision
Following this carriage victory in 2012, the McSherry
action stood down while the parties focused their attention on the
Jones action, but in 2014 a motion was brought to certify
the McSherry action in Ontario. However, rather than
proposing that McSherry be certified as an Ontario-only
action, class counsel, in keeping with their stated willingness to
do so during the 2012 motions, instead sought certification for a
national opt out class that would exclude any persons that opted in
to the Jones action. With the defendants consenting to
certification, Justice Perell ordered in favour of certifying the
While in 2012 Justice Perell favoured the Ontario-only
McSherry action to the national opt out Mets
action due to the advanced stage of Jones, he noted in his
2014 McSherry certification decision some of his reasons
for, generally, preferring opt out actions to opt in actions.
Specifically, he noted that while the Jones notice program
may have been quite effective, there are still putative class
members who have not opted in to the Jones action and who
may not be aware of the class actions against the defendants.
Justice Perell stated that for these class members, certification
of the McSherry action would protect the rights and
limitation periods of any putative class members that had not taken
the active step of opting in to Jones and, as such, would
enhance access to justice.
Justice Perell's decisions in both 2012 and 2014 illustrate
that Ontario courts have a strong, general preference for national
opt out class actions over opt in actions, but that when faced with
the complex problems presented by numerous, overlapping class
actions arising in multiple jurisdicitions, Ontario courts will
take great consideration of the procedural progress of the actions
involved and the effects of such progress on the rights of putative
and actual class members, and the courts will act flexibly to
protect those rights.
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.
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