Claiming to act on behalf of all Quebecers who have developed some form of inflammatory bowel disease as a result of taking the drug Accutane, Mr. 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, Mr. Lebrasseur alleged that he 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 properly warn health professionals and consumers 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, more particularly, the risk of inflammatory bowel disease.
Justice Savard of the Quebec Superior Court dismissed the motion on the ground 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) C.C.P.
Mr. Lebrasseur did not file any 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. Justice Savard observed that Mr. Lebrasseur had simply alleged a causal relationship between taking Accutane and the onset of Crohn's disease without providing any 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) C.C.P.
Justice Savard pointed out that certain questions are 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 are common issues.
This decision confirms that the petitioner must have a personal claim in order to bring a class action and that, to be certified, a class action must be supported by solid evidence, not just vague, general allegations.
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