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Bonnie Tough, one of the class action lawyers scarred by the ongoing carriage battle over the high-profile Vioxx law- suit, says she's not sure first-come first- served is always best anyway, particularly since it would simply encourage litigants and their counsel to file cases immedi- ately after something goes wrong. Tough, of Tough and Podrebarac LLP in Toronto, also believes having national classes is important in cases spanning the country. "I really believe it has become an impediment to justice," she says, noting plaintiffs' lawyers such as herself worry about copycat claims from competing counsel whenever they launch a lawsuit. "National classes make a lot of sense. We don't want to have 10 trials." The issue has taken on particular resonance given the ongoing litigation against Merck Frosst Canada Ltd. over cardiac problems allegedly caused by the painkiller Vioxx. For years, plain- tiffs' lawyers have been battling over carriage in the case, with Saskatchewan lawyer Tony Merchant having achieved certification in his home province cover- ing everywhere but Quebec. Before that, however, an Ontario court had autho- rized a national class action in that prov- ince, putting many plaintiffs under two separate proceedings. Recently, the case took another turn when the Saskatchewan Court of Appeal quashed Merchant's certification. But like the Supreme Court in Lépine, it also acknowledged, but largely skirted, the issue of overlapping claims, instead tossing the case on the merits that it presented neither an identifiable class nor common issues worthy of certifica- tion. As a result, the competing litigation might be over for the moment, but the Saskatchewan decision is still subject to possible appeal at the Supreme Court. So, the question of national classes and battles over carriage likely will con- tinue. But as for Lépine, BLG's Audren says she wasn't expecting the top court to deal substantively with that issue anyway given the obvious concerns over the conflicting notices and lis pen- dens that made Canada Post's appeal a fairly easy one to reject. "I totally agree with them not to have done so because they were such bad facts." ntitled-3 1 Even one of the lawyers who repre- sented McArthur in Ontario is on side with the Supreme Court decision to sever the Quebec action given the prob- lems with the notice he was involved in drafting. "On that basis, I certain- ly understand the court's decision and quite frankly agree with it," says David Thompson, a class action lawyer with Scarfone Hawkins LLP in Hamilton. "The reason it was structured that way really was at Canada Post's request," he adds, arguing the Crown corporation was essentially trying to expand the set- tlement to Quebecers in a bid to "ram it down their throats." He says, too, the seemingly odd decision in the Ontario court ruling to exclude B.C. residents was an effort to avoid interfering with a similar settlement that was at hand in that province. For her part, Audren remains skepti- Back row: Associates Ryan Evans, Michal Niemkiewicz, Geoff Mowatt | Front row: Partners Angela Furlanetto, David Reive, Ron Dimock Your pharmaceutical litigation team The pharmaceutical litigation team at Dimock Stratton has the experience and technical expertise to handle the most complex matters. Case in point: Dimock Stratton's efforts and innovative approach recently took a major generic further than any had come before in its effort to enter the lucrative statin market. This was a major reason cited by Managing Intellectual Property when they named Dimock Stratton Canadian Patent Contentious Firm of the Year 2008. When you or your clients need results based on experience, look no further than the team at Dimock Stratton. Dimock Stratton llp experience. results. 20 Queen W. 32nd fl, Toronto | 416.971.7202 | dimock.com www. C ANADIAN Law ye rmag.com JULY 2009 47 2/10/09 9:18:46 AM