Mignacca et al. v. Merck Frosst Canada Ltd. et al. [Indexed as: Mignacca v. Merck Frosst Canada Ltd.]

95 O.R. (3d) 269

Ontario Superior Court of Justice,

Divisional Court,

J.M. Wilson, Reilly and Karakatsanis JJ.

February 13, 2009

Civil procedure -- Class proceedings -- Certification -- Stay of action -- Multi-jurisdictional class proceedings commenced against defendant in Saskatchewan and Ontario -- Action certified as class proceeding in Saskatchewan before certification motion was heard in Ontario -- Ontario motion judge granting certification motion and denying defendant's request to stay Ontario proceeding pending outcome of Saskatchewan action -- Defendant's appeal from denial of stay dismissed -- Motion judge not bound by principles of comity and full faith and credit to defer to Saskatchewan order -- Permitting two multi-jurisdictional class proceedings to proceed not constituting abuse of process.

Multi-jurisdictional class proceedings were commenced against the defendant in Ontario and Saskatchewan. When the Saskatchewan action was commenced, with the Merchant Group as counsel, Saskatchewan was an "opt in" jurisdiction for class actions: non-residents were included in the class only if they chose to opt in to the provincial proceeding. A certification order was granted for residents of Saskatchewan, and for non- residents on an opt-in basis, in February 2006. In that same month, carriage of the Ontario action was granted to a national consortium of counsel (the "Consortium") on the basis that it was in the best interests of the plaintiffs to be represented by the Consortium rather than the Merchant Group. After the Saskatchewan Class Actions Act, S.S. 2001, c. C.-12.01 was amended to permit multi-jurisdictional class actions on an opt- out basis, the certification order was amended in May 2008 to become a multi-jurisdictional opt-out class action (the "Amended Certification Order"). In July 2008, the Ontario multi-jurisdictional class action was certified and the defendant's request to stay the Ontario proceeding pending the final disposition of all issues raised in the Saskatchewan action was denied. The defendant was granted leave to appeal the denial of the request for a stay.

Held, the appeal should be dismissed.

The motion judge was not required by the "full faith and credit" principle and the principle of comity to defer to the certification of the Saskatchewan action. The first multi- jurisdictional certification order made in Canada is not a trigger point, crystallizing carriage of the class action with the effect of shutting down all other class actions across Canada. The principle of comity applied equally to the Saskatchewan motion judge when he considered the motion for the Amended Certification Order. That motion judge did not appear to have given full faith and credit to the Ontario Carriage Decision. The effect of the Amended Certification Order was to undermine the Carriage Decision and to ignore the clear finding of fact that the litigants would be better served with representation by the Consortium. The Ontario motion judge gave full faith and credit to the Saskatchewan decision, to the extent it did not undermine the Carriage Decision and the findings of fact in that decision as to the best interests of the litigants in Ontario and elsewhere. Permitting two multi- jurisdictional class actions to proceed was not an abuse of process.

APPEAL by the defendant from the decision of the motion judge on a certification motion denying the defendant's request for stay of proceedings.

Cases referred to Amchem Products Inc. v. British Columbia (Workers' Compensation Board), 1993 124 (SCC), [1993] 1 S.C.R. 897, [1993] S.C.J. No. 34, 102 D.L.R. (4th) 96, 150 N.R. 321, [1993] 3 W.W.R. 441, J.E. 93-674, 23 B.C.A.C. 1, 77 B.C.L.R. (2d) 62, 14 C.P.C. (3d) 1, 39 A.C.W.S. (3d) 600; [page270] Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, J.E. 91-123, 52 B.C.L.R. (2d) 160, 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1, 24 A.C.W.S. (3d) 478, consd Other cases referred to 472900 B.C. Ltd. v. Thrifty Canada Ltd., 1998 6522 (BC CA), [1998] B.C.J. No. 2944, 168 D.L.R. (4th) 602, [1999] 6 W.W.R. 416, 116 B.C.A.C. 233, 57 B.C.L.R. (3d) 332, 84 A.C.W.S. (3d) 863 (C.A.); Anderson v. Wilson (1999), 1999 3753 (ON CA), 44 O.R. (3d) 673, [1999] O.J. No. 2494, 175 D.L.R. (4th) 409, 122 O.A.C. 69, 36 C.P.C. (4th) 17, 89 A.C.W.S. (3d) 441 (C.A.) [Leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 476]; Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401, [2004] O.J. No. 4924, 247 D.L.R. (4th) 667, 192 O.A.C. 239, 27 C.C.L.T. (3d) 50, [2005] 1 C.N.L.R. 8, 2 C.P.C. (6th) 199, 135 A.C.W.S. (3d) 567 (C.A.) [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 50]; Englund v. Pfizer Canada Inc., [2007] S.J. No. 273, 2007 SKCA 62, 284 D.L.R. (4th) 94, [2007] 9 W.W.R. 434, 299 Sask. R. 298, 43 C.P.C. (6th) 296, 158 A.C.W.S. (3d) 932 (C.A.); Harper v. Harper, 1979 168 (SCC), [1980] 1 S.C.R. 2, [1979] S.C.J. No. 92, 98 D.L.R. (3d) 600, 27 N.R. 554, [1979] 5 W.W.R. 289, 13 R.F.L. (2d) 5, 8 R.P.R. 261, [1979] 2 A.C.W.S. 370; Hickey-Button v. Loyalist College of Applied Arts & Technology, 2006 20079 (ON CA), [2006] O.J. No. 2393, 267 D.L.R. (4th) 601, 211 O.A.C. 301, 31 C.P.C. (6th) 390, 148 A.C.W.S. (3d) 853 (C.A.); Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895); Hunt v. T&N plc, 1993 43 (SCC), [1993] 4 S.C.R. 289, [1993] S.C.J. No. 125, 109 D.L.R. (4th) 16, 161 N.R. 81, [1994] 1 W.W.R. 129, J.E. 93-1890, 37 B.C.A.C. 161, 85 B.C.L.R. (2d) 1, 21 C.P.C. (3d) 269, 43 A.C.W.S. (3d) 1070; Mignacca v. Merck Frosst Canada Ltd., 2008 61238 (ON SC), [2008] O.J. No. 4731 (S.C.J.); Nantais v. Telectronics Proprietary (Canada) Ltd., 1995 7400 (ON SC), [1995] O.J. No. 3069, 36 C.B.R. (3d) 231 (Div. Ct.); Setterington v. Merck Frosst Canada Ltd., 2006 2623 (ON SC), [2006] O.J. No. 376, [2006] O.T.C. 97, 26 C.P.C.(6th) 173, 145 A.C.W.S.(3d) 566; Tiboni v. Merck Frosst Canada Ltd., 2008 37911 (ON SC), [2008] O.J. No. 2996, 295 D.L.R. (4th) 32, 60 C.P.C. (6th) 65, 168 A.C.W.S. (3d) 36 (S.C.J.); Wuttunee v. Merck Frosst Canada Ltd., [2008] S.J. No. 324, 2008 SKQB 229, 312 Sask. R. 265 Statutes referred to Class Actions Act, S.S. 2001, c. C-12.01 Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 25 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 62.02(4) (b)

Harvey Strosberg, Q.C., Bonnie A. Tough, Jacqueline A. Horvat and Jonathan Bida, for plaintiffs (respondents). Neil Finkelstein, Catherine Began Flood and Mary M. Thomson, for defendants (appellants).

The judgment of the court was delivered by

J.M. WILSON J.: -- [page271]

The Issue: Judicial Review of the Refusal of Justice Cullity to Order a Stay

[1] On April 1, 2008, the Saskatchewan Class Actions Act, S.S. 2001, c. C-12.01 (the "Saskatchewan Act") was amended to permit multi-jurisdictional class actions on an opt-out basis. On February 15, 2008, Chief Justice Klebuc of the Saskatchewan Court of Queen's Bench certified a class action for residents of Saskatchewan and non-residents on an opt-in basis. On May 29, 2008, this certification order was amended to become a multi-jurisdictional opt-out class action (the "Amended Saskatchewan Certification Order" [[2008] S.J. No. 324, 2008 SKQB 229]). No objection is taken with the February 15, 2008 certification order. The plaintiffs in this proceeding take serious issue, however, with the appropriateness and effect of the Amended Saskatchewan Certification Order.

[2] On July 28, 2008, Cullity J. certified this Ontario multi-jurisdictional class action (the "Ontario Action") [2008 37911 (ON SC), [2008] O.J. No. 2996, 295 D.L.R. (4th) 32 (S.C.J.)] and denied the request of the appellants Merck Frosst Canada Ltd. et al. ("Merck") to stay the Ontario proceeding pending the final disposition of all issues raised in the Saskatchewan Court of Queens Bench class action Wuttunee v. Merck Frosst Canada Ltd., [2008] S.J. No. 324, 2008 SKQB 229 (the "Saskatchewan Action").

[3] Merck sought leave to appeal Cullity J.'s decision.

[4] On November 24, 2008, Justice Bellamy dismissed the application for leave to appeal the certification order, but granted leave to appeal with respect to the denial of the stay of proceedings pursuant to rule 62.02(4)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [2008 61238 (ON SC), [2008] O.J. No. 4731 (S.C.J.)]. Merck sought to raise the constitutionality of multi-jurisdictional actions. Bellamy J. dismissed the request as it had not been raised before Cullity J. and as the issue has been raised by Merck in the outstanding appeal in Saskatchewan.

Position of the Parties

[5] Merck argues that the failure of Cullity J. to order a stay of the Ontario proceedings violates the constitutional doctrine of giving "full faith and credit" to a judgment of another province and resulted in an abuse of process. Merck is now subject to two multi-jurisdictional proceedings that involve substantially the same plaintiffs, and involve substantially the same issues.

[6] Merck argues that the principles of comity apply and that Cullity J. did not have discretion to stay the Ontario Action. In counsel's words, granting the multi-jurisdictional Amended [page272] Saskatchewan Certification Order was a "triggering event" that had the effect of "shutting down all class proceedings across Canada".

[7] Counsel for Merck argues that the first action to be certified trumps all other outstanding multi-jurisdictional proceedings. The winner in the race to certification takes all. In this case, the first to cross the finish line with a certification order was the Saskatchewan Action.

[8] The respondents argue that Cullity J. correctly exercised his discretion to decline to order a stay in light of the carriage decision in this action and the significant findings of fact made in that decision. In February 2006, Regional Senior Justice Winkler (as he then was) granted carriage of the Ontario Action to a national Consortium of counsel (the "Consortium") (the "Carriage Decision") [Setterington v. Merds Frosst Canada Ltd., 2006 2623 (ON SC), [2006] O.J. No. 376, 145 A.C.W.S.(3d) 566]. He specifically made a determination that it was in the best interests of the plaintiffs to be represented by the Consortium, in preference to the proposed competing group from Saskatchewan (the "Merchant Group"). Both groups were seeking carriage of a multi-jurisdictional class action in Ontario. It is the Merchant Group that has carriage of the Saskatchewan Action.

[9] The respondents argue that Klebuc C.J., the judge managing the Saskatchewan Action, erred [when he] failed to apply the principles of comity to the very specific and important findings of fact in the Carriage Decision. They argue that it was not reasonable or appropriate on the facts of this case to certify a multi-jurisdictional certification order in Saskatchewan in light of the very specific findings in this Decision impacting upon the plaintiffs. The respondents argue that the Amended Saskatchewan Order granted on May 29, 2008 failed to apply the appropriate principles, indirectly overruled the Carriage Decision, considered irrelevant factors in the analysis and simply put, was wrong.

The Issues

[10] The following emerge as the issues to be addressed: -- What is the standard of review of Cullity J.'s decision? -- Was Cullity J. constitutionally required to defer to the certification of the Saskatchewan Action, as suggested by Merck, thereby limiting his discretion not to grant a stay? -- What is the impact, if any, of the Carriage Order granted by Winkler J.? [page273] -- If Cullity J. was not constitutionally required to defer to the Saskatchewan Action, how do the principles of comity and collateral attack apply to the facts of this case? -- Is permitting two multi-jurisdictional class actions to proceed an abuse of process?

Standard of Review

[11] The standard of review applicable on appeal from a motions judge's decision with respect to orders made in a class action is one of considerable deference, given the expertise of motions judges and the flexibility afforded to certification proceedings under the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA"). An appellate court should only intervene with the motions judge's decision where matters of general principle are at stake: Anderson v. Wilson (1999), 1999 3753 (ON CA), 44 O.R. (3d) 673, [1999] O.J. No. 2494 (C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 476; Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401, [2004] O.J. No. 4924 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 50.

[12] However, this deference is not afforded to a motions judge's legal errors on matters "central to the proper application of s. 5 of the CPA": Hickey-Button v. Loyalist College of Applied Arts & Technology, 2006 20079 (ON CA), [2006] O.J. No. 2393, 267 D.L.R. (4th) 601 (C.A.). Here, Merck submits that Cullity J. committed an error of law in failing to apply a constitutional principle requiring him to "give full faith and credit" to the judgment in Wuttunee. This would represent an error of law and a question of law invokes a standard of review of correctness.

Background Facts

[13] Vioxx is an anti-inflammatory, pain-relieving drug that was marketed and sold in Canada by Merck. It was approved by Health Canada in October 1999, and was withdrawn from the market by Merck on September 30, 2004.

[14] The analysis of prescriptions filled indicates that 350,000 Canadians were prescribed Vioxx during the relevant time frame. Approximately 2,000 Canadians experienced cardiac events potentially related to ingesting the drug.

[15] The breakdown of prescriptions filled confirms that 2.5 per cent of users of Vioxx are residents in Saskatchewan, 30 per cent are residents in Ontario and 40 per cent are residents in Quebec.

[16] In October 2004, multi-jurisdictional class proceedings were commenced by the Consortium and the Merchant Group in [page274] Ontario. There were approximately 30 similar actions commenced against Merck across Canada.

[17] At the time, Saskatchewan, British Columbia, Alberta and Newfoundland were "opt in" jurisdictions for class actions, which include non-residents in the class only if they chose to opt-in to the provincial proceeding.

[18] In October 2004, Ontario and Manitoba were the only two "opt-out" jurisdictions, which automatically include all residents and non-residents in the certified class unless the individual opts out of the action.

[19] A class action was certified against Merck in Quebec and is proceeding independently.

Certification in the Saskatchewan Proceedings

[20] The Merchant Group sought certification in Saskatchewan for a class action for Saskatchewan residents, and potentially others, based upon the legislation at the time, which was "opt- in".

[21] The motion for certification was argued in Saskatchewan in January 2006. A certification order for the residents of the Province of Saskatchewan, and for non-residents on an opt-in basis, was granted on February 15, 2008. No one disputes that this order with respect to Saskatchewan residents will be respected. Cullity J.'s certification order excludes Quebec and Saskatchewan from the ambit of the multi-jurisdictional Ontario order.

[22] As of April 1, 2008, amendments to the Saskatchewan Act converted Saskatchewan from an opt-in jurisdiction to an opt- out jurisdiction.

[23] The Merchant Group sought to expand the prior certification order in the Saskatchewan action to become a multi-jurisdictional opt-out class action. Consortium Counsel in this proceeding made arguments opposing the expansion of the Saskatchewan certification order in light of the findings of fact in the Carriage Decision.

[24] On May 29, 2008, Klebuc C.J. granted the request of the Merchant Group to amend the Saskatchewan certification order. It is the impact of this multi-jurisdictional Amended Saskatchewan Certification Order that is in dispute.

[25] Merck appealed both the February 15, 2008 certification order and the May 29, 2008 order to the Saskatchewan Court of Appeal. The appeal has been argued, and the case is presently under reserve. [page275]

Certification in the Ontario Proceedings

[26] The certification motion in the Ontario Action was scheduled to be heard for three days in late October 2007. It was adjourned at the request of Merck to permit cross- examination.

[27] A second date for the certification motion was set for February 2008. Merck brought a motion to disqualify all counsel in the Consortium, including Alan Rock, who was to argue the certification motion. The time for the certification motion was used to argue Merck's disqualification motion. Alan Rock was disqualified; however, the remaining members of the Consortium were not.

[28] The certification motion in the Ontario Action was rescheduled to be heard in late June 2008.

[29] As a result of the delays in the Ontario proceeding, the Amended Saskatchewan Certification Order dated May 29, 2008 became the first multi-jurisdictional class action order, which is subject to appeal.

[30] The effect of initiating the appeals is to stay all Saskatchewan certification orders.

[31] On July 28, 2008, Justice Cullity certified the Ontario Action on an opt-out multi-jurisdictional basis and refused Merck's request for a permanent stay pending the determination of issues in the Saskatchewan Action.

[32] Merck promptly appealed Cullity J.'s decision.

[33] Justice Bellamy granted leave with respect to the refusal of Cullity J. to order a stay of this action, but dismissed the request for leave to appeal from the order for certification.

[34] Justice Bellamy concluded that the correctness of the refusal to stay was open to very serious debate, given the potential results of allowing two overlapping multi- jurisdictional class actions to proceed in different provinces in tandem.

Issue 1: Was Cullity J. constitutionally required to defer to the certification of the Saskatchewan Action, as suggested by the appellant, thereby limiting his discretion not to grant a stay?

[35] The appellants submit that Cullity J. was constitutionally required pursuant to the Supreme Court of Canada's judgments in Amchem Products Inc. v. British Columbia (Workers' Compensation Board), 1993 124 (SCC), [1993] 1 S.C.R. 897, [1993] S.C.J. No. 34 ("Amchem"); Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135 ("Morguard"); and Hunt v. T&N plc, 1993 43 (SCC), [1993] 4 S.C.R. 289, [1993] S.C.J. No. 125 ("Hunt") to [page276] "give full faith and credit" to the judgment of the Saskatchewan Court of Queen's Bench in Wuttunee. Merck argues that Cullity J. had no residual discretion to refuse to order a stay of the Ontario Action.

[36] In Morguard, and subsequently in Amchem and Hunt, the Supreme Court articulated the principle that, given Canada's nature and structure as a federal state, courts in one province in Canada are bound to recognize and respect judgments of courts in other provinces. Canada's Constitution, accordingly, is designed to create a unified nation with particular shared social, economic and judicial arrangements. This requires final judgments given in each province to be enforced throughout the country (see Morguard, at paras. 36-39).

[37] The principle of comity is part of, but not equivalent to, the constitutional principle of unity and consistency among judicial determinations in Canada. According to Morguard, the content of comity between nations under private international law informs the "full faith and credit" principle applicable in interprovincial relationships.

[38] The constitutional principle identified in Morguard, and developed in subsequent cases, reflects a broad principle requiring that order and justice be maintained in the Canadian legal system in light of the Constitution. Canada's constitutional arrangements require mutual recognition of final judgments among Canadian courts.

[39] In our view, Merck's characterization of the constitutional principle in issue in this case is far too narrow and fails to capture the underlying purpose of the existence of such a principle in Canada in its application to the facts of this case. The certification orders in both Ontario and Saskatchewan are not final judgments, but rather are interlocutory procedural orders that may be amended at any time as the cases proceed. Furthermore, certification may not, depending on the jurisdiction, involve consideration of the forum non conveniens principles.

[40] The principles determining the scope of a court's obligation to respect and enforce judgments in another Canadian province are flexible [Morguard, at para. 39]:

. . . the application of the underlying principles of comity and private international law must be adapted to the situations where they are applied, and that in a federation this implies a fuller and more generous acceptance of the judgments of the courts of other constituent units of the federation. In short, the rules of comity or private international law as they apply between the provinces must be shaped to conform to the federal structure of the Constitution. [page277]

[41] There is no precedent interpreting these decisions in the context of multi-jurisdictional overlapping class actions. The case law confirms that the principle of constitutional respect for judgments of other provinces and the principle of comity are not meant to be rigidly, slavishly followed. These principles are intended to be logical and practical, and to promote fairness and finality for litigants. We conclude that the principles that emerge from the case law are helpful, but must be interpreted and adapted in light of the nature and intended purpose of class actions.

[42] The principles of "full faith and credit" and comity are relative and flexible, and not absolute as Merck suggests.

[43] In Morguard, La Forest J. emphasized, at para. 35, the importance of interpreting the "full faith and credit" constitutional principle in a broad and purposive, as opposed to a formalistic manner, with reference to its underlying objectives of maintaining order and consistency:

. . . The considerations underlying the rules of comity apply with much greater force between the units of a federal state, and I do not think it much matters whether one calls these rules of comity or simply relies directly on the reasons of justice, necessity and convenience . . . (Emphasis added)

[44] La Forest J. further emphasized in Hunt, at p. 325 S.C.R., that "the ideas of "comity" . . . are grounded in notions of order and fairness to participants in litigation with connections to multiple jurisdictions" (emphasis added).

[45] In Morguard, La Forest J. considered the application of the principle of comity in the context of overlapping proceedings in two Canadian provinces, describing the principle of comity as follows, at para. 31, (citing the description originally adopted by the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895)):

"Comity" in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

[46] We disagree with Merck's submission that the case law dictates 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".

[47] A rule of swiftest to the finish line taking all encourages tactics that may well be contrary to the interests of justice. Such [page278] an interpretation of the principles of constitutional respect for judgments and comity in the case law may result in an arbitrary, unfair order.

[48] Cullity J. specifically rejects Merck's arguments on this issue at para. 41 of his reasons for decision, when he states that it cannot be the answer to the question of how to address multi-jurisdictional class actions in different courts that "the race is to the swift. I hope that we are able to do better than that." And, at para. 37, he raises concerns about potential abuse of process:

I wish to emphasize that my decision to refuse to stay this proceeding will not reflect acceptance of a principle that would assign priority to jurisdictions in which claims are first made, or issues first determined. The practice of rushing to commence overlapping actions in as many jurisdictions as possible in order to claim turf and secure carriage for law firms -- rather than to advance the interests of a putative class -- gives ambulance-chasing a good name and, in my opinion, smacks of an abuse of process.

[49] In this case, the Saskatchewan Amending Certification Order is under appeal and hence is stayed pending the appeal. Therefore, the respondents may argue that the Ontario certification order is the first final certification order in Canada. This argument has no more merit than the argument advanced by Merck. Such a rigid technical approach encourages unfair tactics and undermines the integrity of the justice system.

[50] Generally, to date in class action proceedings, through the co-operation of counsel and guidance from the court, issues of potentially overlapping jurisdiction have been worked out on a practical basis in the interests of litigants.

[51] Justice Cullity confirms the need for an agreement or protocol if carriage motions are not to be respected throughout Canada. He states, at para. 41 of his reasons:

While I am not convinced that the problems that will be created by the continuation of the two actions are insoluble, the result is, of course, unfortunate. If decisions of provincial courts on carriage motions are not to be respected throughout Canada, this merely underlines -- and makes even more urgent -- the need for an agreement or protocol among the superior courts that will provide for nationally-accepted carriage motions and determine the jurisdiction in which such motions will be heard. The recommendations of a committee of the Uniform Law Conference address the question of multi- jurisdictional class actions in different courts but, arguably, would give undue deference to the proceeding that is the first to be certified. To this extent they endorse what appears to be the prevailing view among counsel that the race is to the swift. I hope that we are able to do better than that. (Emphasis added)

[52] Certification proceedings are fluid and subject to change. Certification is an essential preliminary step in the bringing of a class action. However, as recognized by Cullity J. at para. 107 of [page279] his reasons for decision, trial judges in class proceedings are given extensive powers and discretion under s. 25 of the CPA to permit them to fashion ways to address novel issues as they arise.

[53] The fluidity of class proceedings is confirmed by Zuber J. in Nantais v. Telectronics Proprietary (Canada) Ltd., 1995 7400 (ON SC), [1995] O.J. No. 3069, 36 C.B.R. (3d) 231 (Div. Ct.), at para. 15:

It is also argued that other class proceedings may be certified in other provinces relating to the matter which is the subject of this class proceeding. In my respectful view any of these practical difficulties which may develop as the matter proceeds can be met by amending the order in question to adjust the size of the class. If it is shown that the law of another province is so substantially different as to make the trial with respect to class members from that province very difficult, the class can be redefined. Additionally, if a class is certified in another province that group can be deleted from the Ontario class.

[54] When the "full faith and credit" constitutional principle and the principle of comity are considered in light of their underlying objectives in the context of potentially competing multi-jurisdictional class actions, I conclude that it is clear that Cullity J. was not constitutionally bound to stay the Ontario Action, and that he had jurisdiction to make the decision to refuse to grant the stay.

Issue 2: What is the impact, if any, of the Carriage Decision rendered by Winkler R.S.J.?

[55] It is clear that Cullity J. refused the request for the stay of the Ontario Action primarily as a consequence of the findings of fact made in the Carriage Decision.

[56] We begin with a review of the details in the Carriage Decision, as the findings of fact made by Winkler R.S.J. are pivotal in the matters raised before this court.

[57] Merck argues that the Carriage Decision is "irrelevant" and "a red herring" in relation to the competing certification proceedings. Merck argues that the principles of comity do not apply, as the issues in the Carriage Decision were different and bear no relation to the issues considered as part of certification in the Amended Saskatchewan Certification Order.

[58] Justice Winkler determined the Carriage Motion based upon the qualifications of counsel. He made very clear findings as follows: -- The counsel involved in the National Consortium had superior experience in class proceedings, in preference to the experience of counsel from the Merchant Group in Saskatchewan. [page280] -- Lead counsel in the Merchant Group, Tony Merchant, was not eligible to practice in Ontario and was not subject to the national mobility provisions due to his disciplinary record in Saskatchewan. -- The Merchant Group had initiated another proceeding against Merck on behalf of shareholders, which created a conflict with their request to represent plaintiffs in a class action. -- There was an absence of candour on behalf of the Merchant Group. The existence of the other lawsuit giving rise to the conflict of interest was not disclosed.

[59] We attach as Schedule A detailed excerpts from Winkler R.S.J.'s reasons outlining the details of these findings of fact.

[60] The disciplinary record of Tony Merchant in Saskatchewan involves five previous convictions from 1972 to 2006:

1. March 10, 1972 -- guilty of breach of several Canons of Legal Ethics in connection with radio broadcasts. Reprimanded and ordered to cease regular radio broadcasts. Court of Appeal quashed the "Order to cease regular radio broadcasts" June 12, 1972. [1972] 4 W.W.W.R. 663
2. December 1, 1973 [Dec 6, 1974] -- reprimanded for writing to another lawyer's client.
3. December 12, 1986 -- Mr. Merchant pled guilty to charge of wilfully interfering with the lawful use of private property contrary to The Criminal Code, granted absolute discharge in Provincial Court. Fined $1,000.00 and assessed costs of $5,000.00.
4. November 13, 2000 -- convicted by Hearing Committee for misleading correspondence soliciting former Indian Residential School students, Sentenced December 18, 2000 by way of reprimand, ordered to pay $5,000.00 to fine and costs of $10,000.00. Appealed to Court of Appeal [2002 SKCA 60] (), Appeal dismissed May 10, 2002.
5. June 23, 2006 (#1)(#2) -- #1 -- convicted of conduct unbecoming for withdrawing or authorizing the withdrawal of trust funds contrary to Court Order and without client consent, suspended 2 weeks, costs of $36,205.96 plus costs of sentencing AND

#2 -- convicted of conduct unbecoming in that he did correspond to various residents of Estevan, Saskatchewan, by letter with attached Retainer Agreement both of which were reasonably capable of misleading the intended recipients. [Similar to above referenced as Nov 13/00 (misleading letters and solicitation/retainer agreement)], reprimanded, fine of 2,500, costs of $21,663.18. Both #1 and #2 UNDER APPEAL

[61] Justice Winkler denied the alternative relief claimed by the Merchant Group seeking to join the Consortium due to significant animosity and scandalous statements made by the Merchant Group about the Consortium. He stated [at para. 27]: [page281]

I cannot accede to the alternative submission of the Walsh plaintiffs that an order should go mandating that their counsel be included in the Setterington counsel group. Apart from the conflict issue identified above, there is clear animosity between the two counsel groups, precipitated no doubt by the inclusion of "scandalous" statements in the Walsh plaintiffs' materials relating to various members of the Setterington counsel team. Although these passages were withdrawn at the beginning of the hearing of this matter, the lingering effects are such that it would not be in the best interests of the class going forward to order the groups to work together. (Emphasis added)

[62] Justice Winkler concluded: "I am of the view that it would be more advantageous for the class to have the Setterington action proceed with its counsel group prosecuting that action. This would be consistent with the goals of the CPA and, in consideration of the progress of the proceedings, does not in any way present any unfairness to the defendants."

Issue 3: If Cullity J. was not constitutionally required to defer to the Saskatchewan Amended Certification Order, how do the principles of comity and collateral attack apply to the facts of this case?

[63] As outlined, the principle of comity is that courts must consider and respect decisions in other jurisdictions, and should not undermine prior decisions.

[64] We conclude that the principle of comity applied both to Klebuc C.J. when he considered the Merchant Group's request to amend the existing certification order in light of the Carriage Decision, and to Cullity J. when he considered the issue of the request for a stay of proceedings.

[65] As counsel for the Consortium suggest, comity in the facts of this case is a two way street.

[66] In our view, to assert that Winkler R.S.J.'s decision is irrelevant in the context of the request to amend the Saskatchewan certification order does not recognize the scope and nature of the Carriage Decision, and is a technical position of form over substance since the two Wuttunee actions in Ontario and Saskatchewan were substantially the same.

[67] Winkler R.S.J. considered whether this action or the first Wuttunee action should proceed in Ontario as a national class action. He considered the scope and nature of the actions as well as the resources and capabilities of counsel.

[68] Although these issues were considered by Klebuc C.J., he does not appear to have given full faith and credit to the Carriage Decision. Although Klebuc C.J. referred to the Carriage Decision, he concluded that the Merchant Group had more experience two years later. Klebuc C.J. failed to refer to [page282] the other very significant reasons why Winkler R.S.J. found that Merchant Group was not qualified or appropriate to have carriage of the action on behalf of a national class of plaintiffs.

[69] Although Klebuc C.J. briefly mentioned the existence of the Carriage Decision, it does not appear that the principles of comity in the unique facts of this case were adequately respected. The effect of the Amended Saskatchewan Certification Order is to undermine Winkler R.S.J.'s Carriage Decision and to ignore the clear finding of fact that litigants would be better served with representation by the Consortium.

[70] Winkler R.S.J. did not merely make a finding that the Consortium was better qualified to represent a national class of plaintiffs. He found that it would be inappropriate for the Merchant Group to represent a national class of plaintiffs. He also chose the current Ontario Action in preference over the Wuttanee #1 national class action.

[71] We conclude that Cullity J. in this delicate situation gave full faith and credit to the Saskatchewan decision, to the extent it did not undermine the Carriage Decision and the findings of fact in that decision as to the best interests of the litigants in Ontario and elsewhere.

[72] Cullity J. applies the principles of comity, at para. 21:

I do not believe I am called upon, or that it would be appropriate, to critique the decision of the learned Chief Justice and I do not intend to do so. I must accept that it is a correct application of the laws of Saskatchewan and that, as such, it merits the utmost respect. It does not, however, follow that I should now defer to the decision to the extent of ordering a stay of the proceeding that, in this court, was held be more advantageous to the class than the similar action brought by Mr. Wuttunee and others with the same legal representation as in Saskatchewan. I am satisfied that, by themselves, principles of comity do not require such a result. Comity is, as Mr. Strosberg submitted, a two-way street.

[73] Excerpts from the reasons for decision of Cullity J. relevant to the issue of the impact of the Carriage Decision are summarized in Schedule B of these reasons.

[74] The appellant concedes that the principle of comity and respecting decisions in other jurisdictions requires the assumption of jurisdiction in the other court to be both reasonable and correct (see Amchem, at para. 56). In this case, Cullity J. relied upon the failure of Klebuc C.J. to apply the principles of comity to the important findings of fact in the Carriage Decision and this provides ample grounds for Cullity J. to exercise his discretion to refuse to stay this proceeding. [page283]

Issue 4: Is permitting two multi-jurisdictional class actions to proceed an abuse of process?

[75] The refusal to grant the stay in this action results in two overlapping multi-jurisdictional class actions. Is this an abuse of process?

[76] The appellants argue that the refusal to grant the stay results in an abuse of process negatively affecting the defendants and the integrity of the judicial system. The respondents argue with equal force that to grant a stay would result in an abuse of process undermining both the rights of plaintiffs, and principles of integrity of the justice system.

[77] In Englund v. Pfizer Canada Inc., [2007] S.J. No. 273, 2007 SKCA 62, the Saskatchewan Court of Appeal distinguishes the doctrine of abuse of process from issues involving forum non conveniens, at para. 37:

It can be readily seen, however, that the doctrine of abuse of process has an identity separate and distinct from the concept of forum non conveniens. Abuse of process is ultimately aimed at preventing the misuse of the courts. Forum non conveniens is grounded in judicial comity and concerned with ensuring that cases are litigated in an appropriate forum. (Emphasis added)

[78] Abuse of process focuses on the integrity of the adjudicative system. See 472900 B.C. Ltd. v. Thrifty Canada Ltd., 1998 6522 (BC CA), [1998] B.C.J. No. 2944, 168 D.L.R. (4th) 602 (C.A.) ("Thrifty"), at para. 51:

Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different form the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. (Emphasis added)

Merck's Argument Concerning Abuse of Process

[79] Merck argues that it is the first defendant in Canada to be subject to simultaneous competing multi-jurisdictional class actions certified in two different provinces involving the same plaintiff class and substantially the same claims, thereby creating chaos, [page284] confusion, uncertainty and the possibility of inconsistent verdicts, contrary to the interests of judicial economy.

[80] We conclude that Merck identifies a problem, but exaggerates the consequences of two parallel proceedings. Potential plaintiffs would receive notices with respect to two actions. A mechanism would be found for plaintiffs to chose between the two outstanding actions and proceed within the action of their choice. Apparently some 7,000 potential plaintiffs have already contacted counsel in the Consortium. As Cullity J. observed, the presence of two overlapping multi- jurisdictional class proceedings is unfortunate, but the problems are solvable with co-operation, communication and direction from the courts.

[81] We note that Merck's argument of prejudice to the defendants flatly contradicts the position it has taken in these and all other proceedings. Merck's assertion of "chaos" and prejudice caused by two similar multi-jurisdictional class actions appears somewhat hollow given Merck's express preference for individual actions, or 13 provincial class actions across the country.

Respondents' Arguments Concerning Abuse of Process and Conclusion

[82] The respondents argue that to stay the Ontario Action, giving effect to the Amended Saskatchewan Certification Order, would be an abuse of process bringing the administration of justice into disrepute and seriously impacting the rights of plaintiffs.

[83] Merck suggests that the effect of the Amended Saskatchewan Certification Order is to require the residents of Ontario to be governed by the action in Saskatchewan. This suggestion is contrary to public policy and contrary to the principles cited in Nantais to suggest that the Amended Saskatchewan Certification Order has the effect of depriving a province of certifying a class action for its own residents.

[84] In Amchem, Sopinka J. stated, at p. 914 S.C.R., that there may be circumstances when two parallel actions may be permitted to continue:

In some cases, both jurisdictions would refuse to decline jurisdiction as, for example, where there is no one forum that is clearly more appropriate than another. The consequences would not be disastrous. If the parties chose to litigate in both places rather than settle on one jurisdiction, there would be parallel proceedings, but since it is unlikely that they could be tried concurrently, the judgment of the first court to resolve the matter would no doubt be accepted as binding by the other jurisdiction in most cases.

[85] Cullity J. was very concerned about the integrity of the justice system when the Saskatchewan court declined to apply principles of comity to the Carriage Decision. If the requested [page285] stay had been granted, it would allow counsel who had been resoundingly unsuccessful in one jurisdiction (Ontario) to in effect re-litigate the carriage issue in another province (Saskatchewan). To allow forum shopping by counsel with much to gain personally encourages, as Cullity J. points out in para. 37 of his reasons, ambulance chasing and greed, and exposes the sorry underbelly of our justice system. He states: "The practice of rushing to commence over-lapping actions in as many jurisdictions as possible in order to claim turf and secure carriage for law firms -- rather than to advance the interests of a putative class -- gives ambulance- chasing a good name and, in my opinion, smacks of abuse of process" (emphasis added).

[86] We conclude that there is no merit to the submissions made by Merck with respect to abuse of process. Admittedly, the existence of two multi-jurisdictional proceedings adds another layer of complication to already complex litigation. The problems, however, are not insurmountable. I conclude that a greater abuse would be to allow and encourage forum shopping, and to require the Ontario plaintiffs to be required to pursue their actions in Saskatchewan, with the Merchant Group as their representatives.

Conclusion

[87] The standard of review applicable on appeal from a motions judge's decision with respect to certification of a class action is one of considerable deference, given the expertise of motions judges and the flexibility afforded to certification proceedings under the Class Proceedings Act, 1992. An appellate court should only intervene with the motions judge's decision where matters of general principle are at stake: Anderson v. Wilson, supra; Cloud v. Canada (Attorney General), supra.

[88] The Supreme Court of Canada has described the standard of review applicable to an order granting a stay of proceedings, or refusing to grant a stay, as follows: "A stay of proceedings is a discretionary remedy. Accordingly, an appellate court may not lightly interfere with a trial judge's decision to grant or not to grant a stay": Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82, at para. 87. An "appellate court will be justified in intervening in a trial judge's exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice": Elsom v. Elsom, 1989 100 (SCC), [1989] 1 S.C.R. 1367, [1989] S.C.J. No. 48, at para. 16. [page286]

[89] Furthermore, in Harper v. Harper, 1979 168 (SCC), [1980] 1 S.C.R. 2, [1979] S.C.J. No. 92, Estey J. for a minority of the court stated, at p. 24 S.C.R.:

An appellate Court should be extremely reluctant to interfere with the exercise of a discretionary power by a trial judge . . .

If a judge proceeds on principle properly applicable to the facts of a case and makes a decision judicially, in the exercise of his discretion, this Court will not interfere. But, if it appears that a judge has misdirected himself, or that his decision is so clearly wrong as to amount to an injustice, the Court can and should review the facts upon which the judgment ought to be given. (Re Hull Estate per Laidlaw J.A., [1943 113 (ON CA), [1943] O.R. 778 (C.A.)], at p. 785.)

[90] For the reasons outlined, we disagree with Merck's argument that Cullity J. was constitutionally bound to recognize the Amending Saskatchewan Certification Order. Cullity J. was bound to consider the Order, applying the principles of comity, but was not constitutionally bound to stay the Ontario proceeding because of the procedural certification order in the second Wuttunee action.

[91] We conclude that Cullity J. correctly applied the principles of comity respecting the Saskatchewan Action by carving both Saskatchewan and Quebec out of the Ontario Action certification order.

[92] We conclude that Cullity J. appropriately exercised his discretion to refuse to grant a stay in this proceeding on the unique facts of this case, and in light of the very significant findings of fact in the Carriage Decision. To grant the stay would bring the administration of justice into disrepute and undermine the rights of the plaintiffs in Ontario and elsewhere.

[93] On whatever standard of review, we conclude that Cullity J. carefully and sensitively applied the correct legal principles, and that his decision to refuse to grant the stay is reasonable, clearly supported by the evidence and correct.

Costs

[94] The parties made submissions with respect to costs. Justice Bellamy reserved the issue of costs on the application for leave to appeal to the full panel. The parties each sought costs in the amount of $60,000 for the application for leave to appeal, dependant upon the results of this appeal. The parties sought costs of the hearing before this court if successful in the amount of $30,000 (claimed by the appellants) and $40,000 (claimed by the respondents). In our view, a reasonable award of costs for the application for leave to appeal is $20,000, all inclusive, payable by the appellants to the respondents/plaintiffs. We conclude that [page287] the appropriate award of costs for the appeal before this court is $30,000, all inclusive, payable by the appellants to the respondents/plaintiffs.

Appeal dismissed.

SCHEDULE "A"

Relevant Excerpts From Decision Of Winkler R.S.J.

[9] It is not uncommon to have two or more class proceedings commenced with respect to the same subject matter, seeking certification for similar classes which either overlap significantly or are identical. In these situations, if acceptable to the representative plaintiffs, counsel for different representative plaintiffs often agree to work together thus sharing the burden and cost of the litigation and the remuneration if successful. They also share the risk if unsuccessful. However, as in this case, if an agreement to work together towards a common goal cannot be reached, a proposed representative plaintiff in one action may bring a carriage motion to stay all other class proceedings relating to the same subject matter. In this instance the Setterington plaintiffs bring such a motion. . . . . .

[12] It cannot be ignored that in seeking a stay of one class proceeding in favour of another, the proposed representative plaintiff seeking the stay is asking the court to rule that the putative class will be better served if he or she is permitted to prosecute the action[.] . . . . .

[23] Turning then to the resources and experience of counsel, the Walsh plaintiffs advanced the argument that the court should consider a Vioxx based class proceeding being conducted by the Merchant Group in Saskatchewan as a prevailing factor in the experience of counsel analysis. The certification motion in that proceeding has been argued and is currently under reserve. The Walsh plaintiffs contend that this gives the Merchant Group a decided advantage that augurs in favour of them taking carriage of the Ontario action. While this means logically that the Merchant Group has argued one more Vioxx specific certification motion than the Setterington counsel group at this stage, to give it greater consideration than that would be to ignore the vast wealth of experience of the Setterington counsel group in class action litigation generally and certification proceedings in particular. The counsel group on the Setterington action is comprised of many preeminent class action counsel from across Canada. They have extensive experience at every court level involving certification of class proceedings that is not matched by the Merchant Group, regardless of its experience in general litigation.

[24] Indeed, the public perception of the experience of the Setterington counsel group is also evident in the fact that the Setterington counsel team has been contacted by some 6,600 putative class members. There is no evidence in this respect relating to the Walsh action. It ought not to be ignored as well that the ability to communicate with large numbers of putative class members speaks to the relative resources of counsel. The Setterington counsel team consists of 19 law firms from nine provinces across Canada. Eight of [page288] these firms are located in Ontario where this action will be based. Their combined resources, financial and otherwise, and breadth of experience are significant. This is in stark contrast to the Merchant group which has no office in Ontario and has not provided any evidence that the senior counsel of the group, who are not called to the bar in Ontario, are entitled to practice in Ontario under the current Law Society bylaws. This is not intended to detract from the laudable initiatives of the governing bodies of the legal profession to encourage mobility among lawyers with the consequent economies that can be generated for clients. However, there are practical realities to class action litigation that augur in favour of having at least some of the counsel for the plaintiffs based in the jurisdiction where the litigation is to be conducted.

[25] Another issue arose during the course of the motion that has an impact on its disposition. Counsel for the Setterington plaintiffs brought to the attention of the court a Statement of Claim filed in another intended class proceeding involving Merck as a defendant. In that action, the Merchant Group is acting as counsel for a putative class of plaintiffs that includes employees, shareholders, mutual funds, brokerage firms, venture capital firms, pension funds, insurance companies and the Canada Pension Plan, amongst others, seeking damages for losses in share values allegedly caused by Merck's misrepresentations. The loss claimed is $26 billion. If this claim were successful in whole or in part it could seriously jeopardize the recovery of the claims of the putative class members in the instant proceedings. In my view this securities lawsuit commenced and prosecuted by the Merchant Group brings them into direct conflict with the interests of the putative class proposed in the Setterington or Walsh actions and would, in itself, be a sufficient basis to preclude the Merchant Group from acting as counsel for that class.

[26] That the existence of the securities litigation was not brought to the attention of the court causes me additional concern. There has been some confusion generally between the concept of onus of proof and that of disclosure in the context of a carriage motion. It is incumbent on representative plaintiffs and their counsel seeking orders of the nature sought here to make full disclosure to the court of all factors that could logically impact on the determination of the motion. As with most matters conducted under the CPA, the court is required to consider first and foremost the interests of the silent class members. On a carriage motion, much as in the case of a settlement approval hearing, there is a requirement of utmost good faith on the part of counsel to forego reliance on the adversarial system as a fact-finding mechanism and place all material facts which can have any bearing on the issues before the court, whether these may be against their interests or not. It would be to ignore the reality of class proceedings to disregard the fact that counsel granted carriage of a class proceeding stand to reap a substantial fee if successful. Accordingly, there must be a concomitant obligation to ensure full and frank disclosure of all material facts because the protection of the interests of the silent class members, in those circumstances, demands no less. This precept was stated by this Court in McCarthy v. Canadian Red Cross Society (2001), 8 C.P.C. (5th) 349 (Ont. S.C.J.) at para. 21 in the context of a settlement approval but it is equally apposite here:

. . . a class proceeding by its very nature involves the issuance of orders or judgments that affect persons who are not before the Court. These absent class members are dependent on the Court to protect their interests. In [page289] order to do so, the Court must have all of the available information that has some bearing on the issues, whether favourable or unfavourable to the moving party. It is the obligation of counsel to provide that information in a manner that is consonant with the duty to make full and frank disclosure. Moreover, that information must be provided in a manner that is not misleading or even potentially misleading. In most class proceedings, voluminous records develop as a consequence of the complexity of the litigation. The Court is not equipped, nor should it be required, to engage in a forensic investigation into the material or to mine the record to inform itself. Counsel must direct the Court to all relevant information that would impact on the Court's determination.

[27] I cannot accede to the alternative submission of the Walsh plaintiffs that an order should go mandating that their counsel be included in the Setterington counsel group. Apart from the conflict issue identified above, there is clear animosity between the two counsel groups, precipitated no doubt by the inclusion of "scandalous" statements in the Walsh plaintiffs' materials relating to various members of the Setterington counsel team. Although these passages were withdrawn at the beginning of the hearing of this matter, the lingering effects are such that it would not be in the best interests of the class going forward to order the groups to work together.

SCHEDULE "B"

Relevant Excerpts From Decision Of Cullity J.

[22] In order to grant the stay requested by Merck, I would have to be persuaded that the existence, and certification, of the action in Saskatchewan are new developments that carry with them such advantages to the class that they should be considered to displace, or outweigh, the factors relied upon in the earlier decision of this court. . . . . .

[26] The test is, therefore, different in Saskatchewan from that in Ontario. In determining preferability in Saskatchewan, relative degrees of competence and resources for pursuing a class action are not measured, while in this jurisdiction they may have considerable weight in determining the best interests of the class.

[27] Of the other factors relied upon by Winkler J., there is evidence that, in view of his disciplinary record in Saskatchewan, the lead counsel of the Merchant group -- Mr. E.F. Anthony Merchant Q.C. -- would require the permission of the Law Society of Upper Canada to represent any of the class members in proceedings in this jurisdiction. There is, however, no suggestion that he is not in good standing in Saskatchewan, or that other members of his firm could not represent members of the putative class in Ontario.

[28] Finally, no attempt was made by counsel for Merck to justify Mr. Merchant's failure to disclose his firm's conflict of interest in the carriage motion. Nor was the conflict mentioned in the reasons of Klebue C.J. I was advised that the proceedings from which the conflict arose have now been discontinued but there is no evidence to indicate whether this was sufficient to permit the firm to continue to represent class members. . . . . . [page290]

[33] None of the above suggested grounds for preferring the proceeding in Saskatchewan satisfies me that the plaintiffs in that action should be permitted to derail the decision of this court in the carriage motion to which Mr. Wuttunee and their counsel, as well as Merck, were parties. . . . . .

[36] The difficulty for Merck on this motion is that none of their carefully developed submissions with respect to the above matters provides, or suggests, a reason why this action should be stayed and priority, in effect, given to the decision of the court in Saskatchewan over the earlier decision of this court. Of course a multiplicity of actions raising the same claims among the same parties is to be avoided. But why does it follow that the plaintiffs and their counsel in Wuttunee #2 should now be permitted to undermine the decision of Winkler J. by moving to expand the class in Wuttunee #2 at a time when, to their knowledge, the parties in this action had prepared for the certification motion and the hearing was imminent? The only response I could discern in the submission of Merck's counsel was that this would be required by principles of comity. As I have indicated earlier in these reasons, I am not persuaded by the force of that submission in the circumstances of this case. . . . . .

[38] In declining to grant the stay requested, I make no determination that either this proceeding or Wuttunee #2 will be more advantages to the putative class. My finding is grounded in the fact that a carriage motion was fully argued in, and decided by, this court almost two and one half years ago, and the action that was chosen to proceed has now progressed to the certification stage. In these circumstances, I am of the opinion that it should not now be stayed because of the recent conversion to a multi- jurisdictional class action of a substantially similar proceeding to that already stayed in this province.

[39] I am not convinced that the additional expense to be incurred by Merck is sufficient reason for granting a stay, and abdicating the jurisdiction of this court with respect to the national class let alone its jurisdiction over the substantial number of members resident in Ontario. A simultaneous prosecution of class actions in British Columbia, Quebec and Ontario has been very common in the past.

[40] Merck is in agreement that there should be a separate proceeding in Quebec as well as in Saskatchewan and it is not clear to me that they would have any valid objection if actions were pursued in each of the provinces that have class proceedings legislation with the class limited in each case to residents of the particular province. I note also that, in its response to the motion for certification, Merck has taken the position that individual actions -- with individual trials -- by each of approximately 2000 members of the putative class would be preferable to a class action.