In a judgment handed down on September 23, 2016, in Conseil
pour la protection des malades et Simon Busque v Biomet Canada
inc., 2016 QCCS 4574,1 the Québec Superior
Court ordered a stay of proceedings in an application for
authorization to institute a class action filed by the Conseil pour
la protection des malades, on grounds of lis pendens with
a concurrent Canada-wide class action to the same effect and
between the same parties before the Ontario Superior Court of
This is the first time a Québec court has exercised,
without the parties' consent, the discretion conferred upon it
under article 3137 of the Civil Code of Québec (CCQ
) in order to stay an application for authorization to institute a
class action and avoid the duplication in Québec of a
national class action pending before a court of another
Article 3137 of the CCQ allows a Québec court to stay its
ruling on an action brought before it, over which it otherwise has
jurisdiction, if another action between the same parties, based on
the same facts and having the same subject is pending before an
authority outside Québec.
On October 4, 2013, a national class action was brought in
Ontario against the Biomet Group on behalf of individuals who were
implanted with a Biomet hip replacement device in Canada. The
proceeding was certified by the Ontario Court of Justice on
December 18, 2015. On June 19, 2015, the Conseil pour la protection
des malades filed an application for authorization to bring a class
action before the Québec Superior Court covering a group of
individuals included in the class described in the national class
action and based on similar allegations (Application for
After ruling that the conditions required by article 3137 were
met, the Québec Superior Court held that the rights and
interests of Québec residents will be better served by
staying the Application for Authorization and pursuing the national
class action in Ontario, which was initiated close to three years
ago and is moving ahead quickly. According to the court, staying
the Application for Authorization will save time, energy and
financial resources and avoid the possibility of conflicting
1Davies acted as counsel for Biomet Canada Inc., Biomet
Inc., Biomet Orthopedics, LLC, Biomet Manufacturing, LLC, and
Biomet US Reconstruction, LLC.
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