In his recent decision in McSherry v. Zimmer GMBH, Justice Perell of the Ontario Superior Court certified a national opt out class action that dovetails with a related national opt in class action previously certified in British Columbia. The decision highlights the willingness of Ontario courts to take creative approaches to solve the dilemmas posed when multiple class actions are brought across the country, while still supporting the strong preference in Ontario for national opt out class actions over opt in actions.
The 2012 Carriage and Stay Motions
In 2012, Justice Perell heard carriage and stay motions in respect of competing proposed Ontario-based class actions relating to an allegedly defective hip implant. At the time, numerous other class actions concerning the same implant were in various stages of progress across the country. One of the proposed Ontario actions, McSherry v. Zimmer GMBH, was an Ontario-only action pursued in cohort with the national opt in class action Jones v. Zimmer GMBH that was certified in British Columbia in 2011. The main competing action was Mets et al. v. Zimmer GMBH, which was proposed as a standalone Ontario-based national opt out class action.
Ultimately, Justice Perell held that the pairing of McSherry and Jones would proceed. While Justice Perell noted that his own opinion is that national opt out class actions, generally speaking, are much better for access to justice than national opt in class actions, he stated that he did not regard the fact that Jones is an opt in national class action as a reason for awarding carriage to Mets, as any danger of Ontario residents being left out of Jones would be sufficiently addressed by the regional McSherry and the interests of class members in other provinces could be protected by a robust notice program in Jones, or potentially by class actions commenced in those other provinces. Class counsel for the McSherry action also argued that they would, if necessary, make McSherry a national opt out class action to address any deficiencies in the difference between opt in and opt out regimes.
Justice Perell based his decision, in part, on the fact that Jones had progressed further procedurally than Mets, and it is, in Justice Perell's opinion, greatly beneficial to class members to have a certified class action whereby they can move from being a putative class member to being an actual one. Justice Perell noted, however, that his decision may have been different if he had heard these carriage motions two or more years earlier when his choice would have only been between actions that had not yet been certified.
The 2014 Certification Decision
Following this carriage victory in 2012, the McSherry action stood down while the parties focused their attention on the Jones action, but in 2014 a motion was brought to certify the McSherry action in Ontario. However, rather than proposing that McSherry be certified as an Ontario-only action, class counsel, in keeping with their stated willingness to do so during the 2012 motions, instead sought certification for a national opt out class that would exclude any persons that opted in to the Jones action. With the defendants consenting to certification, Justice Perell ordered in favour of certifying the class action.
While in 2012 Justice Perell favoured the Ontario-only McSherry action to the national opt out Mets action due to the advanced stage of Jones, he noted in his 2014 McSherry certification decision some of his reasons for, generally, preferring opt out actions to opt in actions. Specifically, he noted that while the Jones notice program may have been quite effective, there are still putative class members who have not opted in to the Jones action and who may not be aware of the class actions against the defendants. Justice Perell stated that for these class members, certification of the McSherry action would protect the rights and limitation periods of any putative class members that had not taken the active step of opting in to Jones and, as such, would enhance access to justice.
Justice Perell's decisions in both 2012 and 2014 illustrate that Ontario courts have a strong, general preference for national opt out class actions over opt in actions, but that when faced with the complex problems presented by numerous, overlapping class actions arising in multiple jurisdicitions, Ontario courts will take great consideration of the procedural progress of the actions involved and the effects of such progress on the rights of putative and actual class members, and the courts will act flexibly to protect those rights.
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