The current status of this action in Ontario relates to two decisions in July 2008 by Justice Cullity of the Ontario Superior Court. On July 28, 2008, Justice Cullity certified this action as a national class action relating to Vioxx. On the same day, Justice Cullity dismissed a motion by the Defendants Merck Frosst Canada Ltd., Merck Frosst Canada & Co. and Merck & Co. Inc. ("Merck") seeking to stay this action on the basis of a similar class action commenced in Saskatchewan. Since July 2008, Merck has brought a number of motions and appeals in an effort to challenge both decisions.

Status of Certification

In November 2008, Merck was denied leave to appeal from the certification decision. In most circumstances, this would finally determine the issues relating to certification. However, based on recent events in Saskatchewan, Merck seeks to again challenge certification by seeking an appeal of the leave decision. On March 30, 2009, the Saskatchewan Court of Appeal quashed certification of a separate class action relating to Vioxx in Saskatchewan. Merck relies on this decision to argue certification should be quashed in our Ontario action on the same basis. In response, we will argue that the events in Saskatchewan should have no impact on certification in Ontario because there are significant differences between the Saskatchewan action and our Ontario action.

Status of the Stay

Merck's appeal of the refusal to stay this action did not succeed. The Divisional Court unanimously upheld Justice Cullity's decision refusing a stay. On May 15, 2009, the Ontario Court of Appeal denied Merck leave to appeal from the Divisional Court's decision. Merck has sought further leave to the Supreme Court of Canada, which is still pending.

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