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There is an interesting decision out today from the Court of Appeal for Ontario on the technical but important issue of the jurisdiction of the court. The decision, Mignacca v. Merck Frost Canada Ltd., 2009 ONCA 393, involves a class action lawsuit over the drug Vioxx. An Ontario Superior Court judge had certified the case as a class action. Under the Ontario Class Proceedings Act, section 30(2), appeal of an order certifying a proceeding as a class proceeding can be brought to the Divisional Court with leave of a Superior Court judge. Merck Frost brought such a motion but was refused leave to appeal in November 2008. In the meantime, on March 30, 2009, an earlier certification decision in Saskatchewan was set aside by the Saskatchewan Court of Appeal. Relying on that decision, Merck Frost sought an extension of time to seek leave to appeal to the Court of Appeal from the decision of the Superior Court judge denying leave to appeal. The motion was heard by a single judge in Chambers, Mr. Justice Paul Rouleau.

Mr. Justice Rouleau decided that an extension of time for leave to appeal was not required, since the decision of the Superior Court judge refusing leave to appeal could be construed as a final order. Under section 6(1)(b) of the Courts of Justice Act, final orders of a Superior Court judge can be appealed to the Court of Appeal without leave. While not finally deciding the issue, Justice Rouleau stated that, in the event Merck Frost considered the order to be a final one, they were given a ten day extension of time to appeal. The Plaintiffs could then seek to quash the appeal by a motion brought before a panel of the Court of Appeal.

In my view, there is considerable doubt the legislature intended that a refusal of leave to appeal the granting of a certification order could be appealed directly to the Court of Appeal. This would only serve to encourage further review of certification orders, which the legislature intended would be screened out by way of the leave to appeal procedure to the Divisional Court. Given that Justice Rouleau has suggested the Plaintiffs can seek to quash the appeal which will undoubtedly be brought by Merck Frost, we have clearly not heard the last of this issue.

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