Flexibility in “first-to-file” rule a positive move
The Quebec Court of Appeal’s move to temper the “first-to-file” rule is a step in the right direction, says Toronto class action lawyer Alan Farrer.
“It will likely curb poorly-developed, hastily and tactically-drafted claims. However, the court’s decision still rewards speed in filing and will likely continue to limit the court’s ability to fully consider the best interests of class members,” says Farrer, managing partner with Thomson Rogers.
The first-to-file rule, also known as the Servier rule, has been used in Quebec since the late ‘90s when the courts are faced with two motions for authorization seeking to represent the same class for the same cause of action, Legal Post reports. Read Legal Post
On Dec. 3, in Schmidt v. Johnson & Johnson, the Quebec Court of Appeal rejected a mechanical application of the rule, and proposed “a more flexible application” of it moving forward, the report says. Read Schmidt v. Johnson & Johnson
While Ontario does not operate under the rule, Farrer says the changes are poised to have an impact in Quebec.
“It may be that the Quebec regime and the courts there are doing the Quebec plaintiffs bar a big favour,” he says. “Carriage fights in Ontario are expensive, with very high stakes and I am sure that our courts often have difficulty fairly choosing between firms and consortiums of firms vying to handle the claims. Quebec should end up with far fewer carriage fights.”