Editorial: The dilemma of national class actions

A case before the Ontario Superior Court this month offers a perfect illustration of the problem of national class actions.

In McSherry v. Zimmer GMBH, Justice Paul Perell had the job of sorting out 10 class actions across the country over an allegedly defective hip implant to determine which Ontario matter would go ahead.

The main actions competing against each other were the Ontario matter of McSherry, which is in cohort with the certified B.C. class action of Jones v. Zimmer GMBH, and Mets v. Zimmer GMBH, a case also filed in this province.

Jones is a national opt-in class action while McSherry is a regional one in Ontario. Lawyers in Mets opposed a motion to stay their matter on the basis that it had several advantages over Jones and McSherry, including the fact that it was a national opt-out class action.

In a July 13 decision, Perell ruled in favour of the pairing of Jones and McSherry, in part because the B.C. case was further along and had received certification from the Supreme Court in that province in September 2011.

He noted that an Ontario plaintiff would have the ability to opt into the B.C. matter but would also have the failsafe of the as-yet uncertified McSherry action in Ontario should the B.C. Court of Appeal overturn certification in Jones.

That would be in the best interests of class members rather than staying McSherry and allowing the uncertified Mets to go ahead, Perell ruled.

Perell’s decision provides a good overview of the current dilemmas related to overlapping class actions across the country.

Of course, it’s an issue organizations like the Canadian Bar Association have sought to address through its task force on national class actions.

While the task force made some progress last year, a recommendation for a case management judge to oversee scheduling of overlapping class actions across the country met with considerable resistance from the bar.

The matter before Perell is yet more evidence of the need for action on that front.

While he ultimately made a decision that made sense in terms of dealing with the overlap, the situation could have easily been otherwise if the timing had been different.

Having a judge able to deal definitively with such situations, while certainly tricky in our fragmented justice system, would be better.
— Glenn Kauth

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