Canadian courts may be taking a firmer stance against
certification in pharmaceutical class actions. The recent decision
of the British Columbia Court of Appeal setting aside the
certification of a pharmaceutical class action in Charlton v.
Abbott Laboratories Ltd. ("Charlton")
provides evidence of a growing trend in favour of defendants in
prescription drug class actions in Canada.1 Although the
certification test in most Canadian jurisdictions remains a
procedural question, it is clear that courts will require
plaintiffs to show that causation is capable of being proven on a
class-wide basis before giving the green light to a proposed class
History of the Proceedings
The Charlton class action against pharmaceutical
manufacturers Abbott Laboratories, Ltd. ("Abbott") and
Apotex Inc. ("Apotex") was commenced on behalf of
patients across Canada who had used or purchased the prescription
drug sibutramine, alleging that the drug increased the risk of
cardiovascular events such as heart attack and stroke. The
plaintiffs alleged that the defendants were liable in negligence,
waiver of tort and for breaches of Canada's Competition
Act and British Columbia's Business Practices and
Consumer Protection Act.
A weight-loss drug containing sibutramine was developed by
Abbott and approved for use in Canada in late 2000. In 2009, Apotex
began distributing a generic weight loss drug containing
sibutramine. In 2010, a US medical journal published a study
suggesting that sibutramine was associated with an increased risk
of serious cardiovascular events for patients with pre-existing
heart conditions. Shortly afterwards, the drugs were voluntarily
taken off the Canadian market by Abbott and Apotex.
Decision of the BC Supreme Court
At first instance, the BC Supreme Court certified the action as
a class proceeding under BC's Class Proceedings Act.
The certification judge noted that his role was not to test the
merits of the action, but rather to focus on the form of the action
and whether it was appropriately prosecuted as a class action.
Applying the low threshold "some basis in fact" test from
the Supreme Court's leading decision in Hollick v. Toronto
(City), the Court certified the proposed class action.
Decision of the BC Court of Appeal
On appeal, the BC Court of Appeal overturned the certification
order, finding that the plaintiffs had failed to adduce evidence of
a workable methodology to determine the issue of general,
class-wide causation – namely, that sibutramine actually
increased the risk of cardiovascular events for all class members.
Since the only evidence before the Court was the study suggesting
an increased risk for patients with pre-existing heart
conditions, the Court found there was no viable methodology
for determining causation with respect to the wider class:
While there is no dispute that those with pre-existing
cardiopulmonary disease are at a statistically increased risk of
adverse cardiac events, this is not a case where the experts
disagree on the extent of the risk, but rather, a case where the
experts are uncertain whether there is a risk to the class as a
whole and cannot describe a methodology for addressing that
This was found to be a necessary
element of proof for each of the certified common issues. As such,
the question of causation was incapable of resolution based on the
evidence at the certification hearing. Accordingly, the Court of
Appeal found it was an error for the certification judge to have
certified the class action and set aside the certification
Implications Going Forward
What can product liability class action defendants take away
from this decision? It demonstrates how arguments relating to the
merits can be imported into the certification test and used to
defeat certification. As Justice Willcock stated: "The
question that ought to have been asked at the certification hearing
in relation to both types of claims, is not whether the resolution
of the general causation question will advance the class claims,
but rather, whether there is a reasonable prospect of doing
so." The failure of plaintiff's counsel to put forward
viable evidence of class-wide causation can be considered a failure
to demonstrate causation on a class-wide basis and that a class
action is the "preferable procedure."
Viewed together with the Ontario Divisional Court decision in
Martin v. Astrazeneca (which we covered in our
2014 year-in-review), the Charlton decision
demonstrates a shift to a stricter and more thorough analysis of
proposed class action claims.
Effective September 1, 2016, the Disposition of Surplus Real Property Regulation to the Ontario Education Act was amended with the intention to reduce barriers to the formation of health and community hubs in Ontario.
Health Canada is proposing to change the way that it regulates non-prescription drugs, natural health products and cosmetics in Canada, which will now be referred to collectively as "self-care products."
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