Abstract: The certification motion is arguably the most important step in a class action proceeding, as the court decides whether a putative class will be certified to allow a class action to move forward. The area of class action litigation is one in which there are commonly concurrent and subsequent proceedings in Canada and the United States, creating a unique opportunity for cross-border comparative analyses of the class proceedings and relevant legislation. In 2006 and 2008, proposed plaintiff classes in the United States and Ontario, respectively, brought comparable certification motions to certify Vioxx class action lawsuits. The certification motion in Ontario was granted, while the US motion was denied. This paper undertakes a comparative analysis of the Ontario Class Proceedings Act (CPA), the US Federal Rules of Civil Procedure (FCRP), and certification requirements implications. In particular, the CPA requirement for common issues and the FRCP commonality and typicality requirements are comparatively analyzed based on the Ontarian and US Vioxx class action certification motion decisions and reasons. This paper further uniquely contextualizes the Vioxx class action certification motion decisions within the structural context and culture in which Vioxx’s sponsor, Merck, shaped its promotion in the medical and public narrative, discourse, and ethos, from which regulators, physicians, and the public received information on the drug’s risk for adverse events. Considered contextually, the CPA legislation seems more equitable, as compared with the comparable FRCP legislation. This analysis closes with recommendations to broaden the FRCP certification legislation to become more equitable in its requirements.
Adrienne Shnier (Thu,) studied this question.