A Path Through the Class Action Chaos: Selecting the Most Appropriate Jurisdiction with a National Class Action Panel

• Author: Chris Dafoe
• Pages: 541-573

541

A PATH THROUGH THE CLASS

ACTION CHAOS:

SELECTING THE MOST APPROPRIATE

JURISDICTION WITH A NATIONAL CLASS

ACTION PANEL

Chris Dafoe1

A. INTRODUCTION

On 30 September 2004, Merck Frosst Canada & Co., a subsidiary of

international pharmaceutical company Merck & Co., withdrew the pre-

scription drug Vioxx from the market after a study indicated that the pop-

ular painkiller and anti-inflammatory increased the risk of heart attack

and stroke among those who took it.2 One day later, on 1 October 2004,

class actions were filed against the company by counsel in a number of

Canadian jurisdictions, including British Columbia,3 Saskatchewan,4 and

Ontario.5 The Ontario action, which was filed by Siskinds (a London,

Ontario law firm that specializes in class actions) proposed to seek certi-

fication as a national class, bringing the action on behalf of all Canadians

who had taken Vioxx.6 Over the next three months, other class actions

1 Chris Dafoe, LL.B. 2005 (U.B.C.) is currently completing his articles at Lawson

Lundell LLP, Vancouver. In 2005, he served as researcher for and a member

of the Uniform Law Conference of Canada’s Committee on the National Class

and Related Interjurisdictional Issues. He wishes to thank Elizabeth Edinger of

U.B.C. for her guidance on this paper, Craig Jones and John Kleefeld for teach-

ing him about class action law; and Rod Hayley for introducing him to the

problem of the national class action and giving him the opportunity to research

it..

2 News release, “Merck announces voluntary worldwide withdrawal of VIOXX,”

30 September 2004, online: www.vioxx.com/rofecoxib/vioxx/consumer/index.

jsp (accessed 1 April 2005).

3 Online: www.poynerbaxter.com?Vioxx/press%20release.htm (accessed 1 April

2005).

4 Online: www.merchantlaw.com/vioxx.html (accessed 1 April 2005).

5 The statement of claim for this national class action can be found online: www.

classaction.ca/pdf/Vioxx_statement_of_claim.pdf.

6 Ibid. at para. 1.

542 THE CANADIAN CLASS ACTION REVIEW

were filed in other provinces. On 10 January 2005, counsel at a case

management hearing before Mr. Justice Winkler of the Ontario Superior

Court informed the court that there were at least thirty-two Vioxx class

actions pending against the company in ten provinces.7 At least three of

these, filed in Ontario or Manitoba, were seeking certification as national

class actions.

Given the nature of the class action, in which one person serves as

the representative plaintiff for the claims of many, not all of these pro-

ceedings could be allowed to carry on to certification, settlement, or trial.

It they did, absentee class members would face the impossible situation

of finding their rights determined by a multiplicity of proceedings — at

least three, probably many more — taking place in at least two provinces,

while the defendant Merck would be faced with the equally impossible

situation of defending multiple actions, which may produce inconsistent

results and uncertainty as to which class members would be bound by

which decision. Meanwhile, the various provincial superior courts, acting

independently but with an eye to proceedings elsewhere, would be faced

with the challenge of bringing certainty and finality to a chaotic situation

that existed, not only within their own jurisdiction, but across the coun-

try.

While it is both necessary and in the interest of counsel, class mem-

bers, and the courts that this mass of class actions be winnowed down

to a more manageable number, it is by no means clear what that number

should be. Should there be one class action, representing all those in

Canada who suffered harm as a result of taking Vioxx? Should there be

ten, one for each province? Or should there be some number in between,

resulting from the combination of a multi-jurisdictional class action in

one province and a series of provincial class actions in the rest? And if

there is to be a winnowing, how should it take place? While courts have

employed carriage motions to determine which counsel within a province

should be allowed to proceed with a particular class action,8 the issue

becomes far more complicated when issues of carriage and appropriate

7 Source: 25 January 2005, e-mail to the author from Douglas Lennox of Klein

Lyons, class counsel in proposed Vioxx class actions in Ontario (Tiboni v. Merck

Frosst Canada Ltd.); Manitoba (Rogers v. Merck Frosst Canada Ltd.); and B.C.

(Lajeunesse v. Merck Frosst Canada Ltd).

8 See, for example, Vitapharm Canada v. Hoffmann-La Roche Ltd., [2000] O.J. No.

4594, 4 C.P.C. (5th) 169 (S.C.J.); Richard v. British Columbia, 2003 BCSC 976,

aff’d 2004 BCCA 337; Ricardo v. Air Transat A.T. Inc., [2002] O.J. No. 1090, 21

C.P.C. (5th) 297.

VOL UME 3, No 2, July 2006 543

forum are spread across the various jurisdictions of a federal state such

as Canada.

It may be possible, as some authors have suggested, to adapt existing

procedures to resolve this dilemma. This was the approach recommended

by a committee of the Uniform Law Conference of Canada (ULCC) in

a report released last year9 and further articulated in a paper by Janet

Walker, who was a member of the committee.10 As a member of and

researcher for that committee, I fully endorse its recommendations. In

the course of preparing the report, however, I became intrigued by the

idea that, should the problems surrounding national class actions persist,

a more aggressive remedy might be required in order to serve both the

constitutional principles of order and fairness and the goal of judicial

efficiency. To that end, this paper will examine more fully an approach

that the ULCC committee addressed briefly; namely, the creation of a

Canadian judicial body that would be charged with selecting the most

appropriate forum for any national class action. Or, to put it more bluntly,

to act as a class action traffic cop.

The first part of the paper will examine the development of the class

action in Canada and its impact on the Canadian legal system. In par-

ticular, it will consider some of the problems that have arisen with the

wider availability of the procedure in the wake of the Supreme Court of

Canada’s decision in Western Canadian Shopping Centres Inc. v. Dutton.11

The second part of the paper will survey some of the criticism of the

Ontario court’s decisions certifying national class actions and attempt

to address some of the constitutional issues raised by those critics. The

third part of the paper will examine possible methods of dealing with

the problem of multiple class actions, including how other federal states

have dealt with the issue. It will focus in particular on the history and

operations of the U.S. Federal Court’s Judicial Panel on Multi-District

Litigation (MDL panel), a seven-judge body that has the power to transfer

multiple actions dealing with similar questions of fact or law to a single

court. The MDL panel might serve as useful model for a body that could

9 “Report Of The Uniform Law Conference of Canada’s Committee on the

National Class And Related Interjurisdictional Issues: Background, Analysis,

and Recommendations,” online: www.ulcc.ca/en/poam2/National_Class_

Actions_Rep_En.pdf [ULCC, “National Class Report”]. The committee was

chaired by Rodney Hayley and the report was received by the ULCC at its

meeting in St. Johns in August, 2005.

10 Janet Walker, “Coordinating Multijurisdiction Class Actions through Existing

Certification Processes” (2005) 42 Can. Bus. L.J. 112.

11 [2001] 2 S.C.R. 534 [Dutton].