Law Times

PAGE 12 FOCUS April 6/13, 2009 • lAw Times Co-ordination of national class actions a 'Rubik's cube' BY GRETCHEN DRUMMIE Law Times L itigation involving embat- tled painkiller Vioxx illus- trates the difficulties that still exist in this country when dealing with the co-ordination of competing national class actions, a Toronto lawyer tells Law Times. "We look closely at Vioxx for learning and instruction on nation- al class actions," says Tim Buckley, a partner at Borden Ladner Gervais LLP, and head of the firm's national class action practice group. "It's a bit of a Rubik's cube." Buckley, who is not involved with the actions, says the root of the issue is that a dispute emerged between two groups of plaintiffs' counsel — in On- tario and Saskatchewan — for management of the class action launched against the drug's mak- ers Merck Frosst Canada Ltd. Vioxx is an anti-inflamma- tory pain-relieving drug and it's said 350,000 Canadians were prescribed the medication dur- ing the relevant time frame. The allegation is that patients experi- enced cardiac events potentially related to ingesting the drug. In late 2004, Merck pulled Vioxx off the shelves spark- ing a flurry of suits around the world, including approximately 30 across Canada. Eight lawyers from this province, and Tony Presented by Enroll Today! 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Over time, two major play- ers emerged — Merchant's and an Ontario-based group led by Harvey Strosberg, a senior part- ner at Sutts Strosberg LLP. In Ontario in 2006, Justice Warren Winkler heard a carriage motion to decide which group would run the plaintiff class ac- tion in this province. He selected the Ontario group. Meanwhile the Merchant group sought certification of a class proceeding in Saskatchewan and it was certified in February 2008 for residents of Saskatch- ewan and non-residents on an opt-in basis. Then Saskatchewan changed its legislation from an opt-in to an opt-out jurisdiction. In May 2008 the court included non-residents into the Saskatch- ewan class on an opt-out basis, except for Quebec residents, says Buckley. In July 2008, the defendants moved to stay the proceeding but Justice Maurice Cullity de- cided that the Ontario action would proceed, and at counsel's request carved out Saskatchewan and Quebec when he certified it. The Divisional Court in Feb- ruary denied an appeal of the stay. But, "now, out in Saskatche- wan you had a problem because on May 29, 2008, the Saskatch- ewan court said to the Merchant Law Group, 'You go ahead but your class is going to include Ontario residents,'" says Buck- ley. "So now we have the On- tario people in two classes. "We did not have co-ordination between the two courts," he says. That changed last week . . . at least for the time being, when the Saskatchewan Court of Ap- peal quashed the order certify- ntitled-3 1 3/31/09 10:59:58 AM 'We look closely at Vioxx for learning and instruction on national class actions,' says Tim Buckley. ing the Saskatchewan action. The court disagreed with the certification judge on the issues of identifiable class, common is- sues, and preferable procedure. Addressing the competing actions, the court said: "The po- tential for chaos and confusion derlying dispute on the carriage motion as to which law firm is go- ing to control the plaintiff class ac- tion. The Ontario and Saskatche- wan courts had a disagreement on this and so that issue complicated the bigger and the more impor- tant issue which is co-ordination of actions in different provinces." Counsel will continue to fol- low the appeal proceedings in the cases for further insights into the courts' positions, he notes. In conventional actions, given constitutional authority over property and civil rights in each province, actions can be started by plaintiffs in different provinc- es, he says. "Let's say you brought a proceeding for Vioxx in Ontario and I was living in Saskatchewan, I could bring a proceeding for Vioxx in Saskatchewan. The two actions can go ahead in the two provinces, subject to foreign non- convenience and other controls; that's permitted in Canadian law. "In the U.S. they have a sys- tem to control what they call multi-district litigation where they can bring it all together In the U.S. they have a system to control what they call multi-district litigation where they can bring it all together and co-ordinate it. We haven't evolved to that level yet. is obvious." Buckley says that before last week's decision there was "the prospect of different class ac- tions in the country going for- ward and the classes are multi- jurisdictional, and they overlap. That's not something that long term you want to have." He adds that this was "not the best case to sort out how we're going to have co-ordination in the future because there's the un- and co-ordinate it. We haven't evolved to that level yet." For several years Ontario has had certified national classes "in circumstances where you haven't had competing actions," says Buckley. "So the certification of a multi-jurisdictional class is not new. They've been doing that for 10 or 15 years. 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He further notes the "un- derlying goal of the class action legislation was to promote judi- cial economy and a class action within a province co-ordinates a number of actions, but now when we go nationally we have this potential for this lack of co- ordination." But there is positive news, as Buckley notes there is co-ordina- tion happening these days in some national class actions, and "you have co-ordination when you have a consortium of plaintiffs' lawyers who are working together." Says Buckley: "I expect if you take a look at this in a few years down the road there is going to be a method of co-ordination," says Buckley. "Who is served by the present situation? The plaintiffs' consortiums would argue that their respective classes are. Oth- ers might argue it's hard to find any interest that's served by it, so if we're not serving a particular in- LT Rog er G. Oa tle y , John McLeish and c ontributing authors La ewr y A Jeffr James M. Flaher ty and Ca therine H. Zingg enc . Br e G. The o all, J. Sc wn ot t Maidment, T er es a M. Duf or t and Rog er G. Oa tle y Car a L . Br o wn

• Cover
• Family Court Warning
• The Dirt
• Focus On Class Actions