By Marie-Hélène Beaudoin
In Wainberg c. Zimmer inc., 2012 QCCS 4276, the Superior Court was seized with a Motion to Suspend a class action which was instituted first, in favor of a second class action, based on the fact that the second law firm to institute the proceedings had diligently proceeded with the drafting and filing of its Motion, and has recognised experience in class actions which results in an "added value" for the putative class members, which would be in the members' best interests.
The law firm based its Motion on the Schmidt v. Depuy International Ltd., 2011 QCCS 1533 decision, which is presently under advisement by the Quebec Court of Appeal. In that case, the Court had held that it had discretion not to apply the “First to File” rule mechanically, so as not to condone what it referred to as “ambulance chasing” and “forum shopping”. However, in the Wainberg case, the Court had no such concerns and decided that the general rule should prevail.
“ Therefore, until the Appeal Court renders its decision on the Schmidt Motion, the "First to File" rule still stands and prevails, except when it is obvious from the drafting of the motion that the best interests of the putative class members are not the counsel's priority.
 The Court's role of ombudsman for the putative class members is exercised on the basis of the proceedings filed before it and, between two motions appearing to adequately protect the best interests of the putative class members, the "First to File" rule prevails to determine which one ought to proceed and which one ought to be stayed.”
We will keep you posted when the decision is rendered by the Court of Appeal in Schmidt v. Depuy International Ltd.
The decision is available here.