Canada: Recent Decision In Pharmaceutical Class Action Highlights Importance Of Scrutinizing Common Issues In Proposed Class Proceedings

Last Updated: August 3 2018
Article by Paul-Erik Veel

While class actions can be a useful tool for access to justice, there are limits to the types of claims that can be appropriately advanced through class proceedings. Indeed, the requirements for certification that appear in similar form in virtually every class action statute across Canada are meant to ensure that only those actions that can meaningfully proceed as class actions are in fact certified. Many cases, including certain types of pharmaceutical product liability claims, will simply be unsuitable for certification as a class action. The recent decision of the Ontario Superior Court in Price v H Lundbeck A/S provides an example of such a case.

That case was a proposed class action against H. Lundbeck A/S and Lundbeck Canada Inc. in relation to the drug Citalopram. Citalopram is a selective serotonin reuptake inhibitor (SSRI) that is used for the treatment of depression. Ms. Price brought a proposed class action against Lundbeck, alleging that they had failed to warn women that Citalopram could cause birth defects.

Initially, at the outset of the case, the plaintiffs had sought to certify common issues relating to both the allegation that Lundbeck failed to warn Canadian physicians and patients that Citalopram could cause birth defects and also relating to whether Citalopram was or may be teratogenic (that is, whether it could cause birth defects). However, by the time the certification motion arrived, the plaintiffs had focussed their case on a single common issue: from 1999, did the defendants' breach a duty to warn Canadian physicians and patients that Citalopram is or may be teratogenic? Consequently, the certification proceeding went forward on the basis of that single common issue.

Ultimately, the judge hearing the certification motion, Justice Perell, found that most of the requirements for certification were not met, and he declined to certify the proceedings as a class action.

Where the claim primarily failed was on the requirement that there be common issues. While Justice Perell held that there was some basis in fact for the question that Lundbeck breached the duty to warn Canadian physicians and patients that Citalopram is or may be a teratogenic, he held that this proposed common issue did not satisfy the test of commonality. He identified this for two reasons. First, he held that there was significant variation across the types of birth defects pleaded:

[132] First, the duty to warn itself is not common across the class because commonality does not exist and cannot be semantically manufactured over such a broad range of dangers. Commonality does not exist in the case at bar because congenital malformations present a broad range of potential hazards ranging from the risk of minor human body imperfections of a cosmetic nature to major imperfections that destroy the quality of a person's life or that destroy life itself.

[133] As noted above, the adequacy of a warning depends upon the nature and gravity of the potential hazard and the nature and extent of any given warning will depend on what is reasonable having regard to all the facts and the circumstances relevant to the product in question. In the case there may be commonality for one or even some combinations of the more hazardous congenital malformations, but there is no conceivable commonality in warning about birth defects generally as if they were all of the same gravity.

Second, Justice Perell held that the duty to warn is not a common issue because it did not form a substantial part of each class member's case:

[134] Second, the duty to warn issue is not common because the resolution of it will not avoid duplication of fact-finding or legal analysis, because its resolution is not capable of meaningful extrapolation to assist each Class Member, and because even if the duty to warn issue was resolved favourably for the Class Members, its resolution will not form a substantial part of each Class Member's case and very substantial individual inquiries will required for each Class Member claims. Put bluntly, the duty to warn issue does not connect the dots for a common issues trial that has any utility for a class proceeding that inevitably end with individual issues trials with very significant causation issues associated with the breach of the duty to warn.

This aspect of Justice Perell's decision signals the need for a robust analysis as to the appropriateness of particular common issues. His reasoning demonstrates that the mere fact that an issue can be framed as a common issue across the class is not sufficient. Rather, it serves a reminder that certified common issues must actually be common across all class members and must be a substantial part of each class member's claim. Where there is a single common issue, and that common issue remains dwarfed by multiplicity of individual issues, the common issues requirement will not be satisfied.

Justice Perell also held that a class proceeding was not the preferable procedure for resolving class members' claims. Justice Perell again held that the sheer number of alleged birth defects that were part of the claim and the overwhelming number of individual issues would have meant that a class proceeding was not the preferable procedure.

Justice Perell did find that two of the five requirements for certification were met. In particular, he concluded that requirement that the pleadings disclosed a reasonable cause of action was met, and he also held that there was an identifiable class of two or more persons. However, with regard to the identifiable class requirement, Justice Perell did limit somewhat the scope of the plaintiff's class to only include individuals who had been prescribed branded Celexa manufactured by Lundbeck rather than the generic version of Citalopram. This had the impact of significantly narrowing the class that would have been certified, had the other requirements been met

As Justice Perell repeatedly notes, the decision in Price v H Lundbeck does not mean that pharmaceutical product liability class actions can never be certified. However, it does signal that courts will carefully scrutinize such claims in determining whether they can meaningfully proceed as class action. Where the diversity of the claims is too significant or where individual issues threaten to overwhelm common issues, those claims may not be appropriate to certify as class proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions