Law Times

Law times • SEPTEMBER 8, 2008 FOCUS PAGE 13 by provinces other than Ontario. While there has been a flurry of reports and committees trying to keep chaos and confusion at bay, the case against Merck Frosst Can- ada Ltd., makers of Vioxx, with its potential for having national class- es in more than one jurisdiction, shows just what a can of worms is waiting to be opened. Since Manitoba and Saskatch- f there is a new frontier in class action litigation, it is the cer- tification of national classes ewan passed legislation allowing class actions that include non- residents who do not opt out, and their courts have begun making certifications on that basis, there has been a lot of talk in legal cir- cles about the doctrine of comity, and how it will be applied. Tony Merchant, of Merchant Changing the landscape with national classes I BY JUDY VAN RHIJN For Law Times application for national cer- tification in Ontario, which, in 2006, had a carriage mo- tion where preference was given to the Tiboni group. Saskatchewan Chief Justice John Klebuc, in considering the merits of the different legal teams, their plans for the liti- gation, and the differences be- tween the jurisdictions, came to the conclusion that since the 2006 decision, the Merchant Law Group had gained con- siderable experience and had considerable success in class ac- tions, and that, overall, the ends of justice were well served by a multijurisdictional class action certification in Saskatchewan. During that hearing, both Law Group LLP, has been one of the first plaintiffs' lawyers to test the water. His firm obtained multijurisdictional certification in Manitoba of the class action involving the spraying of Agent Orange at Gagetown, N.B., even though there was already a province-wide case, Ring v. The Queen, certified in Newfound- land and Labrador (an opt-in ju- risdiction for non-residents). "We established that 440,000 people are potentially victims of spraying over a 50-year period. The government said that the people affected live all across Canada, and the Queen's Bench of Manitoba and the Court of Appeal found that Manitoba is an appropriate national jurisdic- tion even though the tort was committed in the province of New Brunswick." Justice Martin Freedman of Merchant and the counsel for Merck gave the opinion that the Ontario Superior Court would apply the doctrine of comity and suspend the On- tario proceedings if national certification was granted in Sas- katchewan, but this was not to be. In July 2008, Justice Maurice Cullity in Ontario was not per- suaded that the plaintiffs in the Saskatchewan action should be permitted to "derail" the decision of Chief Justice Warren Winkler in the carriage motion. While Cullity agreed that the outcome was unfortunate, he said: "If de- cisions of provincial courts on carriage motions are not to be re- spected throughout Canada, this merely underlines — and makes more urgent — the need for an agreement or protocol among the superior courts that will provide for nationally accepted carriage motions and determine the ju- risdiction in which such motions will be heard. The recommenda- tions of a committee of the Uni- form Law Conference address the Manitoba Court of Appeal said, in dismissing the attorney general of Canada's appeal, there would be future opportunities to alter the certification order to al- low judicial comity in respect to developments in courts in other provinces. The Vioxx case, in which Merchant is also involved, looks set to have national classes in two jurisdictions — a situation that defendants Merck Frosst call an abuse of process. Vioxx, which is an arthritic and acute pain medi- cation, was the 10th-most pre- scribed drug in Canada, taken by 700,000 Canadians before it was withdrawn from the market because of an increased risk of se- rious cardiac events plus gastro- intestinal problems. Thirty class actions were lodged across the country but most have now been consolidated into the Tiboni v. Merck Frosst Canada Ltd. litiga- tion in Ontario. The exception is the Wuttunee v. Merck Frosst Canada Ltd. actions being run by Merchant Law Group. Wuttunee had already been certified as a class action for residents in Saskatchewan and for in. Subsequently, the Saskatch- ewan class actions legislation was amended and the Court of Queen's Bench of Saskatchewan recertified it as a multijuris- dictional action on an opt-out basis in May. This occurred de- spite the existence of a previous non-residents who opted Damages: Estimating Pecuniary Loss Cara L. Brown An original approach to blending economic data with unique, particularized case law from civil litigation cases. The Oatley-McLeish Guide to Personal Injury Practice in Motor Vehicle Cases Roger G. Oatley, John A. McLeish and contributing authors This looseleaf provides all the essential step-by-step guidance you need to effectively manage the complexities of Ontario's no-fault insurance system. Product Liability: Canadian Law and Practice Lawrence G. Theall, J. Scott Maidment, Teresa M. Dufort and Jeffrey A. Brown This unique looseleaf offers insight into the tactics and strategies used to effectively bring and defend a product liability case Accident Benefits in Ontario James M. Flaherty and Catherine H. Zingg This resource provides both plaintiff and defence lawyers with in-depth guidance to the Statutory Accident Benefits Schedule in Ontario with summaries and analysis of case law with respect to arbitration decisions from the Financial Services Commission of Ontario (F.S.C.O), and relevant judicial decisions. www.canadalawbook.ca www.lawtimesnews.com CA011 (LT 1-3x4).indd 1 LT0908 Tony Merchant says most would agree one class action in one place is prefer- able in terms of economy, efficiency, and consistency — but agreement on jurisdiction is not always easy to find. the question of multijurisdic- tional class actions in different courts but, arguably, would give undue deference to the proceed- ing that is the first to be certified. To this extent they endorse what appears to be the prevailing view among counsel that the race is to the swift. I hope that we are able to do better than that." As yet, there is still only one national certification in Merck, as the Ontario deci- sion requires amendments to the statement of claim be- fore certification takes place. Merchant is still hopeful that Ontario will stand down if the appeal in the Saskatch- ewan Court of Appeal against certification on Sept. 16 is unsuccessful and some direc- tion comes from the Supreme Court in the appeals of Société canadienne des postes v. Lépine and Hocking v. Haziza. They represent Quebec's formerly chilly attitude to multijurisdic- tional class actions, before the unexpected turnaround in the case of Brito v. Pfizer Canada Inc. in May where a national class action was certified. Even if Ontario certifies nationally as well, creating overlapping jurisdictions, he sees nothing wrong with that in theory. "In practice, one of the concerns is that lawyers will potentially be bargained down by the defendant. They could say to the class in New Brunswick: 'If you won't take the settlement, I'll offer it to the class in Alberta.' You would hope that a judge would stop an improvident settlement, but it's hard for judges when the plain- tiff and the defendant are urg- ing approval of the settlement and there is no one there to put the arguments for why it is not a good settlement." Merchant believes that most Canadians would agree that one class action in one place is pref- erable in terms of economy, effi- ciency, and consistency, but agree- ment on jurisdiction is not always easy to find in class actions. André Lespérance, of Lau- zon Bélanger Inc. in Montreal, points out that in products li- ability cases no province is better placed than any other. "There is no process like in the U.S. for multidistrict litigation where a judge eventually decides which will be the state," says Lespérance. "We don't have a federal court that can take over from the provincial courts. The court in Ontario is sovereign to the people in Ontario and the court in Saskatchewan is sover- eign to the people in Saskatch- ewan, unless the Supreme Court of Canada says otherwise." At present, the Canadian Ju- dicial Council, which could put into effect a quasi-multidistrict litigation process, is concen- trating on other priorities. In the meantime, the courts are trying to work it out for them- selves. Merck may be the first test of their success or their first jurisdictional battle. LT 8/26/08 10:18:51 AM

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