Ontario court allows plaintiff lawyers to switch class-action representatives mid-stream

The Ontario Superior Court has denied an appeal by a defendant in a class action liability case that essentially allowed a trial lawyer to switch representative plaintiffs in mid-stream.
The decision raised the issue of whether defence lawyers were, as a result of the late-in-the game substitution, unable to mount a defence that the substitution was statute-barred under the province’s statute of limitations.
In Heron v. Guidant Corporation, a class of plaintiffs in August 2005 launched three actions against the manufacturer of pacemakers and defibrillators, claiming damages resulting from both products.
Ontario Court Justice Maurice Cullity consolidated two defibrillator actions into one so-called ‘Defibrillator Action,’ and a third action sued for alleged damages related to both defibrillators and pacemakers. [The ‘Pacemaker Action.’]
The Class Proceedings Act caused time to cease running against the class members as of August 2005.
The representative plaintiff in the Pacemaker Action, Herbert Bruce Heron, had been implanted with a defibrillator, but not a pacemaker.
In June 2007, Cullity allowed the plaintiffs’ lawyers to amend their initial statement of claim, removing Heron from the Pacemaker Action and substituting instead Gerald Lambert (who had a pacemaker installed) and Elsa Ibbitson (asserting a derivative family law claim).
Heron was made the representative plaintiff in the Defibrillator Action.
The defence argued this is the first time a court in Ontario had “addressed a situation where a proposed representative plaintiff [sought] to sue in respect of multiple [,] fundamentally different products of the same defendants’ manufacture notwithstanding the fact that the plaintiff may only have purchased one of the products.”
The late-in-the-game substitution, the defence argued, had deprived them of mounting a defence based on the limitation period (i.e. that the proposed substitution was statute-barred).
Ontario’s Superior Court disagreed, noting that both the Defibrillator Action and The Pacemaker Action were united in the commonality of a “common purpose.”
Since the actions were substantially similar, the substitutions of the representative plaintiffs between them did not take away the defendant’s “substantive right” to mount a limitations defence [i.e. in August 2005], the court noted.