The Saskatchewan Court of Appeal refuses to certify a class action against Merck Frosst Canada & Co.

Date Closed

December 14, 2011

Lead Office


On December 14, 2011, The Saskatchewan Court of Appeal refused to certify a class action against the defendants in respect of the drug Vioxx.  See Wuttunee v. Merck Frosst Canada Ltd., 2009 SKCA 43.

The same counsel who acted for the class in Wuttunee commenced a second class action against the same defendants arising out of the class’s use of Vioxx.  The defendants successfully moved to strike out the second action on the basis of res judicata and the doctrine of abuse of process.  The court found that the Bear and Rynchinski Actions were considered to be an effort to litigate by instalment and therefore to be abuses of process.  Therefore, the appeal was dismissed.

McCarthy Tétrault LLP represented Merck Frosst Canada & Co., Merck & Co. Inc. and Merck Frosst Canada Ltd., the defendants, with a team led by Neil Finkelstein.