Can Opt Ins & Opt Outs Mix? A Hybrid Approach To National Class Actions

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