Originally published in Blakes Bulletin on Class
Actions, August 2008
Two recent decisions in the Canadian Vioxx litigation, one
from Saskatchewan and the other from Ontario, should be of
concern to all corporations conducting business in Canada.
These decisions raise the prospect of Canadian defendants
having to defend multiple competing national class actions and
plaintiffs' counsel pushing their cases forward more
quickly (with a view that the race will go to the swiftest),
both of which have the potential to significantly increase the
cost and burden on corporate defendants facing class actions in
In Wuttunee v. Merck Frosst, Klebuc C.J.S.
originally certified a class action brought by the Merchant Law
Firm which included all persons resident in Saskatchewan and
all persons resident elsewhere who elected to participate in
the class action. Subsequently, The Class Actions Act
(Saskatchewan) was amended to allow for multi-jurisdictional
(or "national") class actions, and the representative
plaintiff in Wuttunee applied for an order expanding
the class definition.
In Ontario, there had already been a previous carriage fight
between the Merchant Law Firm and a consortium of
plaintiffs' law firms (the Consortium) that had banded
together for purposes of having a national class action
certified against Merck in Ontario. The Ontario court had
considered the scope of the competing class actions as well as
factors pertinent to the choice of counsel (i.e., degree of
preparation, relative experience and resources) and concluded
that it was in the best interest of the class that the
Consortium prosecute the class action, not the Merchant Law
Firm. The Ontario court therefore stayed the Merchant Law
Firm's Ontario class action.
On the motion in Wuttunee to expand the scope of
the Saskatchewan class action, counsel for the Consortium
appeared and maintained that the Wuttunee action
should be stayed pending a decision by the Ontario court as to
whether the Ontario action should be certified. In his
decision, Klebuc C.J.S. held that the Saskatchewan class should
be expanded to include residents of all provinces, except for
Quebec. Klebuc C.J.S. refused to grade the respective abilities
of the Merchant Law Firm and the Consortium, finding both were
capable of effectively prosecuting the national class action
The Consortium proceeded with their motion to certify a
national class action in Ontario. In addition to the
certification motion, the Ontario court had to consider
whether, having previously rejected the Merchant Law Firm as
counsel that should represent a national class, the Ontario
court should now stay the Ontario action because the
Saskatchewan Court had certified a national class.
In a July 28, 2008 decision, Cullity J. of the Ontario
Superior Court of Justice dismissed the stay motion and
indicated he was prepared to certify a national class comprised
of all persons in Canada, other than residents of Quebec and
Saskatchewan, who were prescribed or ingested Vioxx. Noting
that comity is a two-way street, Cullity J. was of the view
that the plaintiffs and their counsel in the Wuttunee
action should not be permitted to undermine the earlier
decision of the Ontario court by moving to expand the size of
the class in the Saskatchewan proceeding. It is noteworthy that
the Saskatchewan Court of Appeal recently gave leave to appeal
the Wuttunee decision certifying a national class
The Wuttunee decision raises serious comity issues.
There is no process in Canada like the U.S. Multi-District
Litigation Rules that could be used to compel co-ordination of
cases in different provinces. Referencing the difficulties
created by certifying a second national class action, Cullity
J. noted that if decisions of provincial courts on carriage
motions are not to be respected throughout Canada, then the
need for an agreement or protocol among the provincial superior
courts that provides for nationally-accepted carriage motions
and which determines the jurisdiction in which such motions
will be heard becomes even more urgent.
The Supreme Court of Canada will soon hear a case involving
enforcement of a national class settlement approved by the
court of another province as against Quebec residents, and may
take that opportunity to provide guidance to the Canadian bench
and class action bar on co-ordination of multi-province class
actions. It remains to be seen whether the Supreme Court of
Canada or provincial appellate courts will provide much needed
direction in this area.
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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