Class Actions: Quebec Court Of Appeal Tempers The "First To File" Rule

What should a court do when faced with two motions for authorization to institute a class action which seek permission to represent the same class for the same cause of action? Since 1999, the Quebec courts have applied the "first to file" rule, developed in Hotte c Servier Canada Inc.,¹ whereby the first motion for authorization filed takes precedence over any other subsequent motion seeking authorization to represent the same class.

On December 3, 2012, in Schmidt c Johnson & Johnson et al,² the Quebec Court of Appeal handed down an important decision which adds to the Servier rule. In Schmidt, the Court had to decide which of the following two motions for authorization, both directed at various hip implant manufacturers, would prevail and which would be stayed: