Quebec Court Of Appeal Confirms The Decision To Deny
Certification Of A Drug Related Class Action
Different times call for different measures, and the
jurisprudence governing Quebec class actions is no exception to
this rule. While 2011 and the beginning of 2012 brought waves of
decisions in favour of certification, the end of 2012 seemed to
bring more circumspection.
This trend seems to continue in 2013, notably in a decision
rendered in January in the case of Option Consommateurs v. Merck & Co.
Inc. The Court of Appeal of Quebec followed a guarded
approach in this drug related class action, refusing certification
because there was insufficient evidence to demonstrate occurrences
of a known, but rare side-effect, either with the Plaintiff or
amongst the broader group of consumers who used the product.
This class action concerns Fosamax®, a drug used in the
treatment and prevention of osteoporosis. The Plaintiff asserted
that the Respondent was negligent and failed to respect its duty of
safety by marketing an unsafe product with latent defects. Patients
who had consumed one of the ingredients (biphosphonate), had
sometimes developed undesirable conditions (osteonecrosis of the
jaw, bone weakening or skeletal degeneration).
The consumer organization acting as the Plaintiff claimed that
these were side effects caused by the drug. The designated
individual representing the proposed Plaintiff class claimed to
suffer from osteonecrosis of the jaw as a result of having consumed
Fosamax®, although she had received no medical diagnosis to
Medical literature showed that osteonecrosis of the jaw had
occurred in one to four patients out of 100,000 who used
The Court of Appeal maintained the conclusions of the Superior
Court, and dismissed the proposed class action.
The Court concluded that the Plaintiff had not shown any colour
of right. The absence of a medical diagnosis was detrimental to the
certification of the class action. The Court refused to content
itself with "hypotheses", when medical literature showed
very rare occurrences of the side effects complained of, and could
not establish a definite causal link with the use of
The Court also doubted that there were sufficient members of the
proposed group to justify a class action. The drug had been
prescribed to around 100,000 patients and Respondent's market
share was 40%. Therefore, medical literature supported the
conclusion that there did not even exist one occurrence of damages
that could be attributed to the Respondent.
The Court was not impressed, either, with the designated
individual and the Plaintiff's capacity to represent the
Considering that the Plaintiff's only burden at the
certification level is to "demonstrate" their cause of
action, which can prove to be a light burden in most circumstances,
many plaintiffs have tried to present cases based on the fact that
it was "possible" that they suffered damages.
This decision confirms that it is insufficient for the Plaintiff
to claim, in health related class actions, that damages
"appear" to have occurred: convincing medical evidence
must be advanced to establish the actual occurrence in the
individual Plaintiff and in the population that is the object of
the class action, of side effects caused by the use of the
In the absence of such evidence, the Court will likely refuse to
play doctor: it will not agree to make a diagnosis, nor will it
agree to weigh scientific evidence in a legal forum, to arrive at
conclusions which the medical community has not yet reached.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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