In a judgment of April 19 2012(1) the Quebec Court of Appeal sided with the respondents Wyeth Consumer Healthcare Inc and Johnson & Johnson Inc in confirming the dismissal of the appellant's motion for authorisation to institute a class action. The appellant, Isabelle Perreault, sought to represent parents who had purchased certain over-the-counter cough and cold medicines for children under the age of six. She alleged that the respondents had provided no warning about the lack of efficacy of the medicines or their potential health risks.
In October 2007 the US Food and Drug Administration, Health Canada and the respondents issued public advisories that warned of the potential risks related to dosage errors for over-the-counter cough and cold medications intended for children under the age of two. The respondents voluntarily withdrew their products intended for children in this age group. In December 2008 (14 months later), Health Canada issued a further advisory which stated that the medicines should not be given to children under the age of six without a doctor's recommendation, as there was insufficient substantive evidence of efficacy in this age group. Health Canada also issued new labelling requirements to come into effect in Autumn 2009.
The appellant had purchased Dimetapp and Infants' Tylenol and had administered them to her 22-month-old twins to alleviate their cold symptoms. Her children experienced no side effects. After learning about these advisories, she filed a motion with the superior court seeking authorisation to institute a class action against the respondents. The proposed class action claimed reimbursement of the price paid for the medicines, compensation for stress, trouble and inconvenience and punitive and exemplary damages.
After the superior court dismissed her motion, she limited her appeal to reimbursement of the cost of the medicines and punitive damages. The appellant contended that even in the absence of injury, she had sufficient interest under the Consumer Protection Act to have the court condemn the use of practices prohibited by the act and to obtain a remedy for the false and misleading representations that she attributed to the respondents.
The court acknowledged that, even in the absence of damages arising from a failure by a manufacturer to fulfil an obligation under the act, the consumer benefits from a presumption of prejudice. The court added that to take advantage of this presumption and claim the remedies provided under Article 272 of the act, the consumer must prove that there has been a violation of the act. As the appellant failed to provide such proof, the presumption of prejudice in the act could not help her.
In this case, the allegations in the appellant's motion did not demonstrate that the products purchased by the appellant were objectively harmful to the health of children under six years old when used as directed, or that the respondents had made false or misleading representations or had neglected to disclose diligently an important fact concerning the safety of their products. The appellant therefore did not establish prima facie that the respondents had failed in fulfilling their obligations under the act.
Concerning punitive damages, the court reaffirmed the principle that the mere violation of an obligation imposed by the act does not give rise to the automatic application of the right to punitive damages,(2) and that the judge must consider the whole of the merchant's conduct to determine whether the merchant displayed significant carelessness towards the consumer. In this case, the respondents' attitude showed the opposite to be true.
The court also held that the appellant had acted far too hastily in commencing her action and was therefore not a proper representative plaintiff (Code of Civil Procedure Article 1003(d)).
The court drew on the rule of proportionality to point out that the respondent Wyeth had voluntarily implemented a programme to refund the purchase price of its products to consumers, and that the appellant should have seriously considered the possibility of using this amicable compensation method before undertaking a legal remedy to arrive at the same ends.
This is the second Quebec Court of Appeal decision(3) dismissing a pharmaceutical class action in Quebec.
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(1) Perreault v McNeil PDI Inc, 2012 QCCA 713.
(2) Citing on this matter the recent Supreme Court decision in Richard v Time Inc, 2012 SCC 8.
(3) The other being Goyette c Glaxosmithkline Inc, 2010 QCCA 2054.