Must all class members have suffered an identical "prejudice" or harm in order to justify the authorization of a proposed class action? According to a recent decision of the Québec Court of Appeal, this question must be answered with a Yes. In Goyette v. GlaxoSmithKline inc.1 (as well as in the Supreme Court of Canada's recent decision in Bou Malhab c. Diffusion Métromédia CMR inc.2), the Court of Appeal reaffirms the principle that the harm alleged by members of a proposed class must be common to all members. The injuries cannot be susceptible of infinite variation.
This decision arises in the context of a motion to authorize the bringin of a class action. Ms. Goyette alleged that the pharmaceutical manufacturer, GlaxoSmithKline (GSK) was liable for the harm she suffered as a result of false representations concerning the risks of addiction and withdrawal associated with a medication called Paxil®. She filed a class action for the following class:
All persons, (...) who reside or who resided in Canada (...) and to whom (...) the medication PAROXETINE, marketed under the name PAXIL, was prescribed since April 30, 1999 and who experienced addiction and withdrawal problems as a result of the use of this medication, as well as their heirs and assigns.[Our translation]
Refusal to Authorize the Class Action
Article 1003 of the Code of Civil Procedure (C.C.P.) defines the criteria which must be fulfilled before a class action can be authorized. In this particular case, the motion was dismissed because two of the criteria of article 1003 C.C.P. were not met.
The Court first examines different aspects of the claim to see if it raises identical, similar or related questions of law or fact (art. 1003 a) C.C.P.).
In determining whether this first condition is respected, the Court mainly considers whether there is an ascertainable harm that was suffered equally by all class members. This issue was first addressed in Voisins du train de banlieu de Blainville inc. c. Agence métropolitaine de transport, 2007 QCCA 236 (C.A.), a decision in which the Court dismissed a motion to authorize the institution of a class action because the prejudice alleged was susceptible of infinite variation. In Goyette v. GlaxoSmithKline inc., the Court concludes that no "common prejudice" was suffered by class members. As in the Voisins du train de banlieu de Blainville inc., the Court states that the damages suffered by class members are susceptible to limitless permutation for the following reasons: a) there are eight different Compendiums of Pharmaceuticals and Specialties (C.P.S.) for the years 2000-2008, a reference tool used by doctors when identifying the symptoms related to medication. This means that eight sub-classes would have to be created to take into account the textual differences present in each of these publications; b) this is not a case of products liability where a specific number of difficulties experienced by users can be identified; c) the specific risks experienced must be determined individually for each member, as these risks vary according to different factors; and d) in Ms. Goyette's case alone, there are six other possible causes which could explain the symptoms she experienced. Therefore, it cannot be said with certainty that Paxil® is the direct cause of each class member's symptoms.
As such, it is clear in the present case that the questions of fault, prejudice and causation would need to be examined separately for each class member to determine if GSK is indeed liable. The first criterion of 1003 C.C.P. is therefore not met.
Second, the condition requiring that the facts alleged seem to justify the conclusions sought (art. 1003 b) C.C.P.) is also unfulfilled since the Court considers that the C.P.S. included the necessary information concerning the risks of addiction and withdrawal.
The Court of Appeal confirmed Justice Peacock's decision, stating that his judgment contained no error which would allow the Court to intervene.
McCarthy Tétrault's Commentary
Although Goyette v. GlaxoSmithKline inc. is not innovative, it highlights the burden which rests upon every class action petitioner, particularly with regard to the requirement that a claim raise identical, similar or related questions of law or fact. It is not enough for a potential class representative to allege a fault, prejudice and causation. This prejudice or harm must also be shared by all class members. Although the quantum of damages may vary, the harm itself — which is the very basis of the alleged cause of action — cannot vary from one class member to another. Otherwise, the class action, a vehicle for assuring proportionality, judicial economy and access to justice, would be distorted, unleashing a tide of individual questions and considerations.
1. 2009 QCCA 3745, 2010 QCCA 2054.
2. 2011 SCC 9 (Can LII) at paras. 53-55
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