Lebrasseur v. Hoffmann – La Roche Limitée (Québec Superior Court File No.: 500-06000512-109)

On June 27, 2013, Justice Savard of the Québec Superior Court dismissed Plaintiff Yann Lebrasseur’s Re-re Amended Motion for Authorization to Institute a Class Action and be Ascribed the Status of Representative, pursuant to which the Plaintiff requested permission to represent all Québec residents who developed Crohn’s Disease, various others forms of intestinal bowel diseases, rectal bleeding or abdominal cramping and pain as a result of taking the prescription drug Accutane manufactured by Hoffmann-La Roche.

The Québec Superior Court held that the facts alleged did not seem to justify the conclusions sought and that the criteria at section 1003(b) of the Code of Civil Procedure of Quebec was therefore not met. The Court noted that the Plaintiff had failed to file the supporting documentation and articles mentioned in his Motion with respect to the alleged association between Accutane and an increased risk of developing Crohn’s Disease. Since the product monographs did disclose certain inflammatory bowel diseases, rectal bleeding, stomach pains and signs of inflammation of the intestines as being observed “adverse reactions”, the Court held that the Plaintiff had failed to explain how said information was insufficient or failed to adequately disclose the “real risks” of developing such illnesses.

Moreover, the Court expressed that the mention of such “adverse reactions” in the product monographs is not, in and of itself, sufficient to conclude to an appearance or colour of right of the causal link alleged by the Plaintiff, the harmful nature of the product or the manufacturer’s failure to inform. The Court expressed that to conclude otherwise would suggest that a class action could be brought against a drug manufacturer for the dangerous nature of its product or failure to meet its duty to inform based solely on the fact that a consumer suffered one of the “adverse reactions” identified in its product monograph, which the Court explained cannot be allowed.

In addition, the Court noted that the Plaintiff’s medical file did not contain any medical fact, statement or opinion that would, if taken as averred, establish a causal link between the consumption of Accutane and the Plaintiff’s Crohn’s diagnosis three years later, or establish Roche’s alleged failure to inform. Justice Savard ruled that the Plaintiff’s allegations of such a relationship, the harmful nature of the prescription drug and Roche’s failure to inform were therefore pure speculation or suspicion. Consequently, the facts alleged and those derived from the exhibits filed in the Court record were insufficient for the Court to conclude that there was a serious appearance of right.

While it was not necessary for the Court to address the other three criteria, Justice Savard nevertheless continued the analysis and held that the criteria at section 1003(d) of the Code of Civil Procedure of Quebec was also not met, that is, that the Plaintiff was not in a position to adequately represent the members of the proposed class. In view of the fact that the Plaintiff failed to demonstrate a serious appearance of right and his own personal claim, the Court held that he consequently did not have the requisite interest to institute a class action. With respect to the Plaintiff’s competence as a representative and implication in the file, the Court concluded that the role of representative in the file appeared to be assumed by the Plaintiff’s attorneys. In summarizing the Plaintiff’s limited involvement, the Court held that the Plaintiff did not demonstrate having the requisite capacities to successfully see the case through to the end or make decisions regarding the proper conduct of the action for the benefit of all group members.