Fighting On Many Fronts: Court Allows Individual Action To Proceed Alongside Class Actions

In Crider v Nguyen, 2016 ONSC 4400, Justice Perell of the Ontario Superior Court recently dismissed a motion by Zimmer, the manufacturer of a hip implant device, seeking to stay the action of two individual plaintiffs who already appeared to be members of one or both of two overlapping and related class actions: McSherry v Zimmer in Ontario, and Jones v Zimmer in British Columbia.

In coming to his decision, Justice Perell had to navigate issues with respect to (i) whether the plaintiffs had opted in to the British Columbia class action, (ii) whether an Ontario court could make such a determination, (iii) whether the plaintiffs ought now be allowed to opt out of the Ontario class action after the expiry of a court-ordered opt out deadline, and (iv) whether and to what extent Zimmer and the other defendants might be prejudiced by allowing the plaintiffs' individual action to continue. We discuss the Court's approach to each of these issues below.