In Adanna Charles v. Boiron Canada (Boiron), the Quebec Superior Court recently rendered a judgement refusing to authorize (certify) a class action and to name as representative plaintiff a petitioner whom it deemed to be less than adequate and lawyer-driven. The decision tempers the liberal approach to authorization in Quebec, and clearly articulates a set of criteria for assessing the adequacy of a proposed class representative. The ruling is also of interest for companies involved in the retail of regulated products, as it suggests that goods having been approved for sale by public authorities – a health product in this case – should not be subjected to legal action grounded in largely unsubstantiated allegations of misrepresentation.
In Boiron, the Petitioner had purchased a homeopathic flu remedy, which she had administered to herself and to her child to no apparent effect. Some months later, she brought a motion to institute a class action. Among other things, she alleged that the medication in question, Oscillococcinum or “Oscillo”, had been falsely advertised as a “cure” for the flu and as containing an active ingredient (duck heart and liver) which it did not, in fact, contain. The Petitioner had been spurred into action after coming across information on the internet concerning a similar U.S. claim.
While recalling the relatively liberal criteria to be applied at the authorization stage of a class action, the Court concluded that the Petitioner had not demonstrated an arguable case (para. 1003 (b) C.C.P.), and was, moreover, not in a position to represent the members adequately (para. 1003 (d) C.C.P.). She had thus failed to meet two of the four requirements necessary to bring a class action in Quebec.
- Failure to Demonstrate an Arguable Case
Apart from noting clear differences in Oscillo’s American and Canadian labels, the former having been submitted as exhibits in support of the Petitioner’s claim, and the latter promising neither duck nor cure, the Court also dismissed three magazine articles submitted by the Petitioner, clearly stating its reluctance to find an arguable case that Oscillo had had no effect on the symptoms of the flu, when the product had already met the requirements of Health Canada and had been approved for sale to this end. The Court then carefully scrutinized the expert opinion submitted by the Petitioner, which acknowledged that Oscillo delivered a slightly better result than a placebo, but only from the perspective of statistical significance (which, according to the expert, was not clinically meaningful). As the Court observed, however, a statistically significant difference had been deemed sufficient for product-approval by Health Canada, which it was not appropriate for the Court to revisit.
- An (in)Adequate Representative
The Court did not take kindly to the Petitioner’s apparent lack of initiative in the case. Noting that she had done no more than mention her disappointment with Oscillo to her mother and a friend who had then encouraged her to contact her lawyer, the Court found that the Petitioner was simply not an “adequate” class representative. While she had also allegedly spoken to a handful of friends, none of them had actually taken the medication. The Petitioner had not retained the packaging or receipt of her purchase, had made no effort to contact Biron Canada to inquire or complain, and had not reached out to any prospective class members prior to contacting class counsel. She had never spoken to the expert in the file and had only “briefly” reviewed his report. In the Court’s view, the action was clearly driven by Plaintiff’s counsel who was attempting to capitalize on a settlement that had been achieved against Biron U.S.A. on the basis of quite different commercial representations.
Summarizing its analysis of the Petitioner’s competence, the Court concluded that “for the word “adequately” of article 1003 d) CCP to have any meaning, the proposed group representative [had] to be more than a “figurant,” whose essential feature [was] to have met the bare minimum condition to be a member of the proposed group; such representative [had] to show the Court that, through some steps, albeit small ones. He or she distinguishe[d] himself or herself from a group member, through enquiries or initiatives which illustrate[d] his or her interest to play the role of representative.”
A prospective class representative is not often found to be inadequate, provided certain minimum criteria of competence and awareness are met. Class actions are, not infrequently, encouraged by vigilant lawyers. The ruling in Boiron pushes back against this trend, issuing a criticism against Quebec class action counsel attempting to ride in on the coat-tails of American settlements. The Court in Boiron was equally critical of the fact that the Petitioner herself had only thought to bring her action once coming across U.S. proceedings at least six months after she herself had consumed the product. “Small steps” must be meaningful, a petitioner is more than a mere group member, and a lawyer cannot be the animating spirit of a class action. Moreover, when a product has passed regulatory scrutiny for what it promises to deliver, those promises cannot easily be found to have been false.