David A. Klein

Two competing groups of plaintiffs brought carriage and stay motions regarding proposed class actions against Zimmer for allegedly defective hip implants.

The court considered the problematic of multiple class actions across Canada, including the differences between opt-in and opt-out regimes.

The court granted carriage to the McSherry action, which was coordinated with a certified British Columbia class action, and stayed the competing Mets, D'Anna, and Ducharme actions, finding this to be in the best interests of the class members.

The appellants appealed an order of the motion judge.

The respondent brought a motion to quash the appeal.

The Court of Appeal granted the motion to quash, finding that the same constitutional issue had already been decided in respect of a closely connected defendant in the same proceeding.

The court also noted that the trial was imminent, several plaintiffs were critically ill, and the defendants had engaged in a proliferation of proceedings resulting in unacceptable delay.