Saskatchewan Court Of Appeal Sidesteps Issue Of Overlapping Classes

Merck Frosst Canada Ltd. v. Wuttunee ("Merck Frosst"), 2009 SKCA 43 (CanLII)

In its recent decision in Merck Frosst, the Saskatchewan Court of Appeal unanimously overturned the certification of a Saskatchewan class proceeding that would have directly overlapped with a proposed class proceeding in Ontario. However, it did not do so on the basis of the multiplicity of proceedings issue, preferring to ground its decision on the plaintiffs' failure to satisfy certain basic elements of the certification test, i.e. (as discussed below) the "identifiable class", "common issues" and "preferable procedure" requirements.

The matter came before the Court of Appeal on appeal from the Saskatchewan Court of Queen's Bench, which had issued an order certifying the class proceeding against Merck, the manufacturer and distributor of the drug Vioxx. In 2004, Merck voluntarily withdrew Vioxx from the market after the results of a study suggested that taking the drug may increase the