“First to File” rule prevails

By Marie-HélèneBeaudoin McCarthyTétrault In Wainberg c. Zimmer inc., 2012 QCCS 4276, theSuperior Court was seized with a Motion to Suspend a class action which wasinstituted first, in favor of a second class action, based on the fact that thesecond law firm to institute the proceedings had diligently proceeded with thedrafting and filing of its Motion, and has recognised experience in classactions which results in an « added value » for the putative classmembers, which would be in the members’ best interests. The law firm based its Motion on the Schmidtv. Depuy International Ltd., 2011QCCS 1533 decision, which is presently under advisement by the Quebec Courtof Appeal. In that case, the Court had held that it had discretion not to applythe “First to File” rule mechanically, so as not to condone what it referred toas “ambulance chasing” and “forum shopping”. However, in the Wainberg case, theCourt had no such concerns and decided that the… Lire la suite