Claiming to act on behalf of all Quebecers who have developed inflammatory bowel disease as a result of taking the drug Accutane, Yann Lebrasseur filed a motion seeking certification of a class action. However, on June 27 2013 the Quebec Superior Court refused to allow the action to proceed.

In his motion Lebrasseur alleged that he had developed Crohn's disease as a result of taking Accutane. He accused the manufacturer, Hoffmann-La Roche Limited, of placing a dangerous product on the market and of failing to warn health professionals and consumers properly about the risks associated with Accutane.

The product monograph prepared by the manufacturer and approved by Health Canada did mention numerous undesirable side effects of the drug, in particular the risk of inflammatory bowel disease.

Justice Savard of the Quebec Superior Court dismissed the motion on the grounds that the facts alleged did not seem to justify the conclusions sought, and thus the action did not satisfy the test of Article 1003(b) of the Code of Civil Procedure.

Lebrasseur filed no scientific articles showing or suggesting any causal link between the use of the drug and the onset of Crohn's disease. Moreover, the court found that the undesirable side effects of Accutane had been properly disclosed by the manufacturer in its monograph. Savard observed that Lebrasseur had simply alleged a causal relationship between taking Accutane and the onset of Crohn's disease without providing supporting evidence.

The court also considered whether the claims of the members of the proposed group raised identical, similar or related questions of law or fact, within the meaning of Article 1003(a) of the code.

Savard pointed out that certain questions were more individual in nature. For example, she mentioned:

  • the dosage and the duration of treatment for each patient;
  • the nature of each member's disease;
  • differing risk factors among patients;
  • the information communicated by the treating physicians about the risks associated with the drug; and
  • the validity of the patients' consent to take the drug.

She also observed that the amount of moral and compensatory damages was an individual issue.

On the other hand, questions relating to the marketing of the product or the manufacturer's failure to discharge its duty to warn were common issues.

This decision confirms that the petitioner must have a personal claim in order to bring a class action and that, in order to be certified, a class action must be supported by solid evidence, not just vague, general allegations.

For further information on this topic please contact Dominic Dupoy at Norton Rose Fulbright Canada LLP by telephone (+1 514 847 4747), fax (+1 514 286 5474) or email (dominicdupoy@nortonrosefulbright.com).

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