Mignacca v. Merck Frosst Canada Ltd. et al., (2009) 247 O.A.C. 322 (DC)

• Judge: J. Wilson, Reilly and Karakatsanis, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 10, 2009
• Jurisdiction: Ontario
• Citations: (2009), 247 O.A.C. 322 (DC)

Mignacca v. Merck Frosst Can. Ltd. (2009), 247 O.A.C. 322 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. AP.025

Benny Mignacca and Elaine Mignacca (plaintiffs/respondents) v. Merck Frosst Canada Ltd., Merck Frosst Canada & Co. and Merck & Co. Inc. (defendants/appellants)

(504/08)

Indexed As: Mignacca v. Merck Frosst Canada Ltd. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Reilly and Karakatsanis, JJ.

February 13, 2009.

Summary:

On February 15, 2008, Klebuc, C.J., of the Saskatchewan Court of Queen's Bench certified a class action for residents and non-residents of Saskatchewan against Merck on an opt-in basis. On April 1, 2008 the Saskatchewan Class Actions Act was amended to permit multi-jurisdictional class actions on an opt-out basis. On May 29, 2008 the certification order was amended to become a multi-jurisdictional opt-out class action. Plaintiffs in a similar action in Ontario took issue with the appropriateness and effect of the amended Saskatchewan certification order. Merck sought a stay of the Ontario action pending the final disposition of the Saskatchewan class action.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. P65, certified an Ontario multi-jurisdictional class action and denied Merck's request for a stay of the Ontario proceeding. Merck sought leave to appeal the decision.

The Ontario Superior Court, dismissed the application for leave to appeal the certification order, but granted leave to appeal the denial of the stay. The court dismissed Merck's request to raise the constitutionality of multi-jurisdictional actions as it had not been raised at first instance and Merck had raised the issue in the outstanding appeal in Saskatchewan.

The Ontario Divisional Court dismissed the appeal respecting the stay.

Conflict of Laws - Topic 8

General - Doctrine of comity - [See third Conflict of Laws - Topic 605 ].

Conflict of Laws - Topic 605

Jurisdiction - General principles - Class actions - The Ontario Divisional Court disagreed with the submission that the case law dictated "that the first multi-jurisdictional certification order made in Canada is a trigger point, crystallizing carriage of the class action with the effect of 'shutting down all class actions across Canada.'" - The court stated that "A rule of swiftest to the finish line taking all encourages tactics that may well be contrary to the interests of justice. Such an interpretation of the principles of constitutional respect for judgments and comity in the case law may result in an arbitrary, unfair order." - See paragraphs 46 and 47.

Conflict of Laws - Topic 605

Jurisdiction - General principles - Class actions - On February 15, 2008, Klebuc, C.J., of the Saskatchewan Court of Queen's Bench certified a class action for residents and non-residents of Saskatchewan against Merck on an opt-in basis - On April 1, 2008 the Saskatchewan Class Actions Act was amended to permit multi-jurisdictional class actions on an opt-out basis - On May 29, 2008 the certification order was amended to become a multi-jurisdictional opt-out class action - Plaintiffs in a similar action in Ontario took issue with the appropriateness and effect of the amended Saskatchewan certification order - Merck sought a stay of the Ontario action pending disposition of the Saskatchewan class action - Cullity, J., certified an Ontario multi-jurisdictional class action (carving out Saskatchewan and Quebec) and denied Merck's request for a stay - On appeal from the refusal to grant a stay, the Ontario Divisional Court held that Cullity, J., was not constitutionally required to defer to the certification of the Saskatchewan action, to give it "full faith and credit" - These were interlocutory procedural orders, not final judgments - The principle of comity was part of, but not equivalent to, the constitutional principle of unity and consistency among judicial determinations in Canada - Generally, through the cooperation of counsel and guidance from the court, issues of potentially overlapping jurisdiction in class action proceedings had been worked out on a practical basis in the litigants' interests - See paragraphs 35 to 54.

Conflict of Laws - Topic 605

Jurisdiction - General principles - Class actions - On February 15, 2008, Klebuc, C.J., of the Saskatchewan Court of Queen's Bench certified a class action for residents and non-residents of Saskatchewan against Merck on an opt-in basis - On April 1, 2008 the Saskatchewan Class Actions Act was amended to permit multi-jurisdictional class actions on an opt-out basis - On May 29, 2008 the certification order was amended to become a multi-jurisdictional opt-out class action - Plaintiffs in a similar action in Ontario took issue with the appropriateness and effect of the amended Saskatchewan certification order - Merck sought a stay of the Ontario action pending the final disposition of the Saskatchewan class action - Cullity, J., certified an Ontario multi-jurisdictional class action and denied Merck's request for a stay - The Ontario Divisional Court held that the principle of comity and respecting decisions in other jurisdictions required the assumption of jurisdiction in the other court to be both reasonable and correct - Cullity, J., relied upon Klebuc, C.J.'s failure to apply the principles of comity to the important findings of fact in a 2006 carriage decision in the Ontario action - This provided ample grounds for Cullity, J., to exercise his discretion to refuse to stay the Ontario proceeding - See paragraphs 63 to 74.

Conflict of Laws - Topic 9202

Practice - General - Comity between provinces - [See all Conflict of Laws - Topic 605 ].

Conflict of Laws - Topic 9287

Practice - Stay of proceedings - Abuse of process - The Ontario Divisional Court held that permitting two multi-jurisdictional class actions to proceed was not an abuse of process - See paragraphs 75 to 86.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The Ontario Divisional Court referred to the standards of review applicable on appeal from a motions judge's decision with respect to orders made in a class action - See paragraphs 11 and 12.

Practice - Topic 210.2

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Procedure - Multiple or competing actions (incl. appointment of lead counsel) - [See all Conflict of Laws - Topic 605 and Conflict of Laws - Topic 9287 ].

Practice - Topic 5283

Trials - General - Stay of proceedings - Jurisdiction - [See third Conflict of Laws - Topic 605 ].

Cases Noticed:

Anderson et al. v. Wilson et al. (1999), 122 O.A.C. 69; 44 O.R.(3d) 673 (C.A.), leave to appeal refused (2000), 258 N.R. 194; 138 O.A.C. 200 (S.C.C.), refd to. [para. 11].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), refd to. [para. 11].

Hickey-Button v. Loyalist College of Applied Arts & Technology (2006), 211 O.A.C. 301; 267 D.L.R.(4th) 601 (C.A.), refd to. [para. 12].

Amchem Products Inc. et al. v. Workers Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 35].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 35].

Hunt v. Lac d'Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 35].

Hunt v. T & N plc et al. - see Hunt v. Lac d'Amiante du Québec Ltée et al.

Hilton v. Guyot (1895), 159 U.S. 113 (Sup. Ct.), refd to. [para. 45].

Nantais v. Telectronics Proprietary (Canada) Ltd., [1995] O.J. No. 3069 (Gen. Civ.), refd to. [para. 68].

Englund et al. v. Pfizer Canada Inc. et al. (2007), 299 Sask.R. 298; 408 W.A.C. 298; 2007 SKCA 62 (C.A.), refd to. [para. 77].

Boehringer Ingelheim (Canada) v. Englund - see Englund et al. v. Pfizer Canada Inc. et al.

472900 B.C. Ltd. v. Thrifty Canada Ltd. (1998), 116 B.C.A.C. 233; 190 W.A.C. 233; 168 D.L.R.(4th) 602 (C.A.), refd to. [para. 77].

Harper v. Harper, [1980] 1 S.C.R. 2; 27 N.R. 554, refd to. [para. 89].

Counsel:

Harvey Strosberg, Q.C., Bonnie A. Tough, Jacqueline A. Horvat, and Jonathan Bida, for the plaintiffs/respondents;

Neil Finkelstein, Catherine Began Flood, and Mary M. Thomson, for the defendants/appellants.

This appeal was heard at Toronto, Ontario, on February 10, 2009, by J. Wilson, Reilly and Karakatsanis, JJ., of the Ontario Divisional Court. J. Wilson, J., delivered the following decision for the court on February 13, 2009.