Introduction
Product liability claims often serve as an example of the type of action particularly suited to
class action litigation. Class action proceedings in Ontario are commenced by a
representative plaintiff on behalf of a larger group against a common defendant(s) on the
basis that the class has suffered the same or substantially the same damage as a result of a
defendant's alleged wrongful conduct. Given the ability of the class action lawsuit to
aggregate a large number of similar legal claims into a single action, it is not surprising that,
in recent years, pharmaceutical companies and other product manufacturers have found
themselves named as defendants in class action litigation.(1)
Many of the product manufacturers named in class proceedings are multinational
corporations. They distribute their products on an international basis and the advent of class
actions has made them potentially liable to worldwide classes of plaintiffs.(2) If the conduct of
these defendants has been wrongful, then the trend towards globalization means it is
increasingly likely that this wrongful conduct will not be restricted to a particular geographic
region. Rather, one tortious act by the same multinational defendant may give rise to a flurry
of actions in multiple jurisdictions or even in the same jurisdiction.
Generally speaking, it is in the interests of defendants to limit and avoid, wherever possible,
a multiplicity of proceedings litigating the same claims. One of the underlying objectives of
class action litigation is to advance judicial economy. The consolidation of similar claims into
a single action reduces wasted resources and duplicative proceedings are avoided. This
principle holds true regardless of whether the multiple claims faced by the defendant span
multiple jurisdictions or arise in the same forum.
In this regard, the recent decision of the Ontario Superior Court of Justice in Setterington v
Merck Frosst Canada Ltd(3) is noteworthy. In Setterington the named defendant was fa