Bear et al. v. Merck Frosst Canada & Co., 2011 SKCA 152

• Judge: Richards, Caldwell and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 14, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKCA 152;(2011), 385 Sask.R. 76 (CA)

Bear v. Merck Frosst Can. & Co. (2011), 385 Sask.R. 76 (CA);

    536 W.A.C. 76

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. DE.058

Phillip Bear and Allan Gurnsey (appellants/plaintiffs) v. Merck Frosst Canada & Co., Merck & Co. Inc., and Merck Frosst Canada Ltd. (respondents/defendants)

(CACV1984)

Allan Rybchinski (appellant/plaintiff) v. Merck Frosst Canada & Co., Merck & Co. Inc., and Merck Frosst Canada Ltd. (respondents/defendants)

(CACV1983; 2011 SKCA 152)

Indexed As: Bear et al. v. Merck Frosst Canada & Co.

Saskatchewan Court of Appeal

Richards, Caldwell and Herauf, JJ.A.

December 14, 2011.

Summary:

The plaintiffs commenced actions under the Class Actions Act in relation to the defendants' product, Vioxx. Each statement of claim included a description of a proposed class. The plaintiffs amended the statements of claim under rule 166 to remove the descriptions of the proposed class. The defendants applied under rule 168 to disallow the amendments and also applied to strike the statements of claim as res judicata and/or an abuse of process. A certification order regarding a similar action, Wuttunee et al. v. Merck Frosst Canada Ltd. et al., had been quashed (Sask. C.A. 2009) and leave to appeal that order had been denied.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2010), 260 Sask.R. 113, having determined that it was appropriate to hear these applications in advance of the certification application, dismissed the application to disallow the amendments and allowed the application to strike the statements of claim. The plaintiffs appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See both Practice - Topic 2239 ].

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - [See both Practice - Topic 2239 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - The plaintiffs commenced actions under the Class Actions Act in relation to the defendants' product, Vioxx - A certification order regarding a similar action, Wuttunee et al. v. Merck Frosst Canada Ltd. et al., had been quashed (Sask. C.A. 2009) and leave to appeal that order had been denied - A chambers judge allowed the defendants' application to strike the statements of claim as an abuse of process - The Saskatchewan Court of Appeal dismissed the plaintiffs' appeal - The actions here, which were a second attempt to certify a Vioxx class action against the defendants, were correctly struck as an abuse of process - The actions were based on the same foundational facts as in Wuttunee and pursued the same causes of action in order to obtain the same relief as sought in Wuttunee - The meaningful difference between the proceedings was that, as a result of the lessons learned in Wuttunee, the actions here were said to be more narrowly framed - If the plaintiffs in Wuttunee had been the plaintiffs here, the class action dimensions of the claims would have been struck because a litigant was required to put his or her best case forward on the "first go round" - The law did not allow for litigation by instalment - See paragraphs 36 to 62.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - The plaintiffs commenced actions under the Class Actions Act in relation to the defendants' product, Vioxx - A certification order regarding a similar action, Wuttunee et al. v. Merck Frosst Canada Ltd. et al., had been quashed (Sask. C.A. 2009) and leave to appeal that order had been denied - A chambers judge allowed the defendants' application to strike the statements of claim as an abuse of process - The Saskatchewan Court of Appeal dismissed the plaintiffs' appeal - The fact that the same lawyers that had represented Wuttunee also represented the plaintiffs in these actions was not entirely irrelevant - A defendant in a class action environment should not have to face a "revolving door of representative plaintiffs who serially advance certification application[s]" until one succeeded - Concerns in this regard were substantially heightened when the same law firm acted in successive certification efforts - Here, the law firm's "across-the-board" involvement could not be overlooked - The actions had to be considered to be an effort to litigate by instalment and, thus, abuses of process - See paragraphs 62 to 78.

Cases Noticed:

Wuttunee et al. v. Merck Frosst Canada Ltd. et al., [2009] 5 W.W.R. 228; 324 Sask.R. 210; 451 W.A.C. 210; 2009 SKCA 43, consd. [para. 1].

Sorotski v. CNH Global NV et al., [2008] 1 W.W.R. 386; 304 Sask.R. 83; 413 W.A.C. 83; 2007 SKCA 104, refd to. [para. 25].

Alves et al. v. MyTravel Can. Holidays Inc. et al. (2011), 377 Sask.R. 27; 2011 SKCA 118, refd to. [para. 27].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 33].

Canam Enterprises Inc. v. Coles et al. (2000), 139 O.A.C. 1; 194 D.L.R.(4th) 648 (C.A.), revd. on other grounds [2002] 3 S.C.R. 307; 296 N.R. 257; 167 O.A.C. 1, refd to. [para. 37].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291, refd to. [para. 38].

Cameco Corp. v. Insurance Co. of the State of Pennsylvania et al., [2010] 10 W.W.R. 385; 359 Sask.R. 174; 494 W.A.C. 174; 2010 SKCA 95, refd to. [para. 39].

Englund et al. v. Pfizer Canada Inc. et al. (2007), 299 Sask.R. 298; 408 W.A.C. 298; 284 D.L.R.(4th) 94; 2007 SKCA 62, refd to. [para. 27].

Samos Investments Inc. v. Pattison et al., [2004] B.C.T.C. 484; 44 B.L.R.(3d) 25; 2004 BCSC 484, refd to. [para. 39].

MacKinnon v. National Money Mart Co. et al. (2006), 224 B.C.A.C. 137; 370 W.A.C. 137; 265 D.L.R.(4th) 214; 2006 BCCA 148, refd to. [para. 39].

Shaw v. BCE Inc. et al., [2004] O.T.C. 28; 42 B.L.R.(3d) 107 (Sup. Ct.), affd. (2004), 189 O.A.C. 9; 49 B.L.R.(3d) 1 (C.A.), refd to. [para. 39].

Wuttunee et al. v. Merck Frosst Canada Ltd. et al., [2007] 4 W.W.R. 309; 291 Sask.R. 161; 2007 SKQB 29, refd to. [para. 48].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 60].

Maynard v. Maynard, [1951] S.C.R. 346, refd to. [para. 61].

Rowell et al. v. Manitoba (2006), 201 Man.R.(2d) 227; 366 W.A.C. 227; 265 D.L.R.(4th) 173; 2006 MBCA 14, refd to. [para. 61].

Ludwig et al. v. 1099029 Ontario Ltd. et al. (2004), 4 C.P.C.(6th) 251 (Ont. Sup. Ct.), refd to. [para. 65].

Ludwig et al. v. 1099029 Ontario Ltd. et al. (2007), 223 O.A.C. 83; 41 C.P.C.(6th) 247; 2007 ONCA 266, dist. [para. 65].

Soderstrom v. Hoffmann-La Roche Ltd. et al., [2008] O.T.C. Uned. 746; 58 C.P.C.(6th) 160 (Sup. Ct.), dist. [para. 65].

Currie v. McDonald's Restaurants of Canada Ltd. et al. (2005), 195 O.A.C. 244; 74 O.R.(3d) 321 (C.A.), consd. [para. 65].

Epstein v. First Marathon Inc. et al., [2000] O.T.C. 109; 2 B.L.R.(3d) 30 (Sup. Ct.), refd to. [para. 73].

Counsel:

E.F. Anthony Merchant, Q.C., and Casey Churko, for the appellants;

Maurice Laprairie, Q.C., Jason Mohrbutter, Neil Finkelstein, and Catherine Beagan Flood, for the respondents.

This appeal was heard on June 14, 2011, by Richards, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. On December 14, 2011, Richards, J.A., delivered the following reasons for judgment for the court.