Management of Multijurisdictional Class Actions in Canada: CBA Protocols invoked in Underhill v. Medtronic Canada

  • March 25, 2024
  • Christine Galea

A recent motion for discontinuance of a proposed class action in Ontario has resulted in an important decision about the management of multijurisdictional class actions in Canada.

In Underhill v. Medtronic Canada, 2023 ONSC 5919 [“Underhill”], Justice Agarwal adjourned the representative plaintiffs’ (“plaintiffs”) motion to discontinue the proposed class action but utilized multijurisdictional class action protocols to address multijurisdictional sequencing issues raised by the defendants.

Factual Matrix

The underlying claim in Underhill arises from allegations that the defendants designed, manufactured and sold defective surgical stapler products. A proposed Ontario class action was initiated in October 2021 (the “Ontario Action”). The same plaintiff law firm subsequently commenced an overlapping proposed class action in British Columbia on behalf of a different proposed representative plaintiff (the “BC Action”). 

Within weeks following the commencement of the BC Action, plaintiffs in the Ontario Action brought a motion to discontinue the Ontario Action. The defendants opposed the discontinuance of the Ontario Action because a discontinuance would impair their application to stay the BC Action.