The tide is slowly turning in favour of a more balanced approach to the certification of class actions in Quebec with the January 17, 2006 Superior Court judgment in Piro v. Novopharm rendered by Justice Claudine Roy.
Under the amendments to the Code of Civil Procedure (CCP) in effect since January 2003, a petitioner’s burden to provide evidence in support of a certification motion was substantially lessened, which resulted in a plethora of class actions founded on vague allegations of wrongdoing reported in the media or on the Internet. Justice Claudine Roy has made it clear in the Piro judgment that such a practice is no longer acceptable.
In a detailed judgment concerning a request by a consumer advocacy group to certify a class action against generic drug manufacturers on the basis of an alleged failure to reduce the price of generic drugs by the value of gifts and rebates granted to pharmacists, Justice Roy has confirmed that, despite the 2003 amendments, the principles contained in the Supreme Court case of Hollick v. City of Toronto still apply and that the petitioner must establish a factual basis for each condition required for certification.
In Piro, the petitioner relied upon vague allegations gleaned from articles in the media and other court proceedings against three of the nine respondents, as a basis for damages incurred by consumers in Quebec. Justice Roy held that such vague allegations of fact were insufficient to meet the conditions set forth in Article 1003 CCP.
This judgment follows the Young v. Noranda decision, in which Justice Godbout held that nothing in the amendments prohibited respondents from seeking permission to test the relevance of the purported facts in a discovery examination of the petitioner at the hearing on the motion for certification. Similarly, in Dallaire v. Eli Lilly Canada Inc., Justice Carl Lachance held that the amendments in the CCP did not prohibit respondents from seeking the right to file expert reports addressing the alleged facts at the hearing of the motion for certification.
Class action attorneys are awaiting the January 23, 2006 Court of Appeal hearing in Bouchard v. Agropur, which will focus on the petitioner’s right to sue multiple respondents despite the absence of any privity of contract or interest. It is hoped that the momentum in favour of respondents will continue in 2006.
Authors credit: Silvana Conte is a partner in Osler’s Litigation Department in Montreal and is the Co-Chair of the firm’s National Class Actions Speciality Group.
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