In a unanimous ruling[i] on November 12, 2010, the Quebec Court of Appeal maintained the dismissal of a motion for authorization to institute a class action against GlaxoSmithKline Inc. ("GSK").[ii] The petitioner, Iyana Goyette, sought to represent all persons residing in Canada who allegedly experienced dependency and withdrawal problems further to use of the antidepressant PAXIL®, claiming that GSK (i) had marketed the drug without assuring its safety, (ii) had breached its obligation to adequately inform health professionals and consumers of the risks of reducing or discontinuing its use, and (iii) had made false representations about such risks. Ms. Goyette claimed physical, economic, moral and punitive damages on behalf of members of the proposed group.

The Court of Appeal confirmed the Superior Court's finding that the criteria set out in paragraphs (a) and (b) of Article 1003 of the Code of Civil Procedure ("CCP") had not been satisfied.

BACKGROUND

It should be borne in mind that this proceeding was initiated prior to the 2003 reform of the CCP, at a time when it was still possible to file relevant affidavit evidence without authorization of the court. Thus, in support of its contestation, GSK was able to provide the court with information relevant to the criteria set out in Article 1003 by filing the examination of Ms. Goyette on her affidavit, together with an expert's affidavit. This documentary evidence showed that it would be necessary to examine the case of each member of the proposed group in order to determine whether he or she had suffered from the alleged symptoms and whether the symptoms were related to reducing or discontinuing use of PAXIL.

The examinations revealed that the petitioner had started to take PAXIL after consulting her doctor, who had examined the Compendium of Pharmaceutical Specialties (CPS) with her and had confirmed that there was no risk of dependency or withdrawal associated with discontinuing its use. In fact, the CPS described a variety of symptoms that might occur following cessation of treatment, characterizing them as "generally mild and transient," and indicated that withdrawal and dependency syndromes were "rare".

Article 1003(a) CCP - Existence of identical, similar or related questions of law or fact

The Court of Appeal concluded that the trial judge had not made any palpable or overriding error when he applied an important principle set out in Voisins du train de banlieue de Blainville inc. c. Agence métropolitaine de transport,[iii] namely, the need to establish collective prejudice in order to meet the test of Article 1003(a) CCP. The Court of Appeal found that the trial judge had ruled correctly in light of the allegations and the evidence presented, namely, that there could be no collective prejudice since the alleged subjective symptoms associated with the reduction or cessation of the drug, such as headaches, dizziness, vertigo or insomnia, were susceptible of infinite variations.

On appeal, Ms. Goyette pleaded that requiring proof of collective prejudice was contrary to the intention of the legislator, which had adopted Articles 1037 to 1040 CCP to deal specifically with individual claims. Relying on decisions where class actions were authorized in pharmaceutical matters, the petitioner argued that the individual assessment of the prejudice allegedly suffered by each member should be conducted in the context of the procedure contained in Articles 1037 to 1040 CCP. Her argument failed to sway the Court of Appeal.

Thus, breaking with all previous class action decisions in pharmaceutical matters, in which actions were authorized when the only common issue was one of fault, the Court of Appeal has recognized that the impossibility of proving collective prejudice is a bar to satisfying the test of Article 1003(a) CCP.

The facts alleged seem to justify the conclusions sought (Article 1003(b) CCP)

The Court of Appeal also agreed with the trial judge's finding that Ms. Goyette had failed to satisfy the colour of right test contained in Article 1003(b) CCP. Justice Peacock concluded that the allegation that GSK had failed to provide adequate information about the risks of discontinuing the drug was unfounded since the information disclosed in the CPS adequately described the risk of dependency and withdrawal. The Court of Appeal did not find any palpable or overriding error in the trial judge's appraisal of the evidence such as would warrant its intervention.

The Court of Appeal did not comment on Justice Peacock's decision to disregard evidence from other jurisdictions on grounds of irrelevance for purposes of the test in Article 1003(b) CCP.

Failure to represent adequately (Article 1003(d) CCP)

In light of its decision on Article 1003(a) and (b), the Court of Appeal did not comment on the trial judge's finding that Ms. Goyette was not an adequate representative because (i) she did not have a personal cause of action against GSK; (ii) she had shown a singular lack of interest in the class action; and (iii) she never sought to speak with any member of the group, knew none of them and had never sought to communicate with any of them.

National class

The Court of Appeal did not express an opinion on the trial judge's analysis of the conditions for authorization of a national class. Justice Peacock referred to the conditions laid down in the Civil Code of Québec for the Quebec courts to assume jurisdiction. They include the fact that the defendant has an establishment in Quebec and the dispute relates to its activities in Quebec or that damage is suffered in Quebec. Justice Peacock concluded that since Ms. Goyette had failed to demonstrate that the activities in issue were associated with a place of business in Quebec, even if he had authorized the class action, she could only have represented members resident in Quebec as only they could have proved damage suffered in Quebec.

CONCLUSION

In this case, the Court of Appeal agreed that the failure to prove collective prejudice made it impossible to satisfy the test contained in Article 1003(a) CCP, without considering whether the other conditions required to establish liability, such as fault or causation, could constitute a common issue. However, Justice Peacock maintained that fault and causation did not constitute common issues. In the circumstances, it may be argued that the common issue test provided in Article 1003(a) CCP cannot be met when a condition necessary to establish liability is susceptible of variations.

As a result of this decision, it will be difficult for a petitioner to argue that an individualized assessment should be conducted in accordance with Articles 1037 to 1040 CCP, which set out the procedure applicable to the determination of individual claims when a class action is granted on the merits.

Goyette c. GlaxoSmithKline Inc. shows that while the burden of proof at the authorization stage remains a burden of demonstration, it is nevertheless necessary to demonstrate a serious colour of right with respect to all the conditions required to establish liability in order to meet the test of Article 1003(b).