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for what he says were delays in warning the public about the tainted products. He argues as well that who the players were on the defence side was an important factor in resolving the case. "I think in part this comes from the McCain attitude. They're rich enough to be gentlemen." Campion, who successfully defended investment firm Nesbitt Burns in the Bre-X class action 10 years ago, adds that a con- trite apology and quick resolution won't always be the correct approach. He worries, for example, about trends in the medical device field in which companies noticing a few glitches in their products risk liability for sending out mandatory advisories to doctors. He's concerned plaintiffs' lawyers will see the advisory as an admission of negligence, something that could have the perverse consequence of making companies reluctant to send it out in the first place. Campion notes another trend in which the Ontario Court of Appeal has begun certifying class actions based in part on whether the wording in the pleadings is correct, something he feels is leading to a "slippery slide into certification by formal- ity." "What has happened is this as far as I can see from a public policy perspective: Access to justice is on everybody's lips. And this is the right vehicle to try to right that balance. What I say is that yes, access to justice is important. But I also say it can't be unfair to defendants and it can't be a set of automatic cases that come out of things like . . . public advisories which are part of a regulatory system [and] are to be encouraged," he says. At the same time, plaintiffs' lawyers such as Docken argue that confusion over jurisdiction in class action cases hampers their work as well and makes the collegiality evident in the Maple Leaf litigation the exception rather than the rule. Vioxx is the obvious example, but Docken says disputes over which provinces' courts should handle a case are a constant headache. It's an issue that Ontario Chief Justice Warren Winkler waded into during an Ontario Bar Association panel in February. As a potential solution, he proposed that the various courts in Canada come to an understanding in which they randomly choose three judges from amongst themselves who would decide both which lawyers would have carriage of the case and which jurisdiction would hear it. "People recognize that we have to come to grips with this now," he said. "We've just reached that point in the evolution of the jurisprudence. We now have a statute pretty well in every jurisdiction. We have these competing claims. It's gotten to be almost a plaintiffs' industry because now there are plaintiffs' lawyers in almost all jurisdictions."IH Get Our Environmental Law Specialists*on Your Team! Our team of environmental lawyers includes 5 Environmental Law Specialists* We find practical business solutions to environmental problems. Call us. www.willmsshier.com * Certified by the Law Society of Upper Canada Juli Abouchar 416 862 4836 Doug Petrie 416 862 4835 John Willms 416 862 4821 Donna Shier 416 862 4822 Marc McAree 416 862 4820 ENVIRONMENT, ENERGY & RESOURCES LAW Untitled-2 1 INHOUSE APRIL 2009 • 12/19/08 10:08:47 AM 19