Authors: Margo R. Siminovitch and Betlehem L. Endale
Publication ǀ April 30, 2024
On April 10, 2024, the class action proceeding brought by the firms Fishman Flanz Meland Paquin LLP and Trudel Johnston & Lespérance was authorized by the Honourable Gary D.D. Morrison, J.S.C. against 16 pharmaceutical companies (the “Defendants”) in relation to their opioid drugs and the applicant was appointed as the class representative (the “Authorization Judgment”).[1] The decision is highly significant as it confirms that, in Quebec, a proposed representative plaintiff can employ the mechanism of a class action to seek redress against an entire industry in the right circumstances and that, where the allegations of wrong-doing are common to the respondents, the applicant is not required to reiterate the same allegations against each respondent individually in its pleadings.
BACKGROUND
Canadians are the second largest consumer of opioids in the world[2] and prescription opioids have contributed to the crisis in Canada.[3] Opioids can lead to physical dependence within as little as 4-8 weeks[4] and, according to the American Medical Association, an estimated 3-19% of people who take prescription pain medications develop an addiction to the drugs.[5] As acknowledged in the Authorization Judgment, although the issue to be determined is the liability related to prescription opioids, and not the opioid crisis, “[i]t is likely that no one involved in this matter, or even those simply reading the present judgement, has not already been made aware one way or another of the existence of an opioid crisis in Canada.”
On May 23, 2019, the application for authorization of a class action was filed in the Superior Court of Quebec against a multitude of pharmaceutical companies[6] that are alleged to have manufactured, marketed, distributed and/or sold opioids in the Province of Quebec during the period from 1996 to present (the “Class Period”). The applicant (hereinafter referred to as the “Plaintiff”) alleged, inter alia, that starting in the mid-1990s the Defendants acted in concert to promote a false and misleading new narrative concerning the safety and efficacy of opioids. Previously, because of the addictive character of opioids, these drugs were prescribed in limited circumstances such as for palliative care and acute short-term pain. However, the pharmaceutical industry saw the financial benefits of broadening the market for these drugs and began to market opioids as appropriate medication to alleviate chronic non-cancer pain although there was little independent evidence to show that the benefits of opioids outweighed the risks when used in this context. The Plaintiff alleged that the actions of the Defendants contravene the provisions of the Civil Code of Quebec, CQLR, c. CCQ-1991 (the “CCQ”), the Competition Act, RSC, 1985, c C-34 (the “Competition Act”), and the Quebec Charter of Human Rights and Freedoms CQLR c C-12 (the “Quebec Charter”).
The defined Class includes all individuals who reside in Quebec (and their heirs), that were prescribed and consumed opioids during the Class Period, and have been diagnosed by a physician as suffering or having suffered from Opioid Use Disorder (“OUD”).[7]
At the authorization hearing[8], the Defendants vigorously contested the authorization of the class action arguing that, inter alia,: (i) the criteria set out in article 575 of the Code of Civil Procedure, CQLR c C-25.01 (“CCP”) were not met; (ii) all of their opioid products and product monographs were approved by Health Canada; (iii) the opioid products targeted by the proposed class action are not all the same and, most especially, contain different active pharmaceutical ingredients; (iv) since the Plaintiff did not consume all of the alleged opioids, he does not have a direct cause of action against each Defendant; (v) they did not market nor promote their drugs; (vi) the allegations are not detailed enough and no evidence was provided to confirm that all opioids can cause OUD; and (vii) the sheer magnitude of the proposed class action would overwhelm the Quebec judicial system if the action is authorized.
THE AUTHORIZATION JUDGMENT
For a class action to be authorized in Quebec, the four criteria set out in article 575 CCP must be satisfied. Although the threshold to satisfy such criteria at the authorization stage is very low, it does not equate to a rubber-stamping of the proposed class action by a court. Generally, courts commence their analysis to determine whether the plaintiff has demonstrated the tenability of the proposed ‘legal syllogism’ (the art. 575 (2) CCP criterion).[9] If the facts alleged in the proceedings are sufficiently clear and precise, they are assumed to be true and the plaintiff is not required to provide any proof (“une certaine preuve”) in support of such allegations.[10]
Justice Morrison reviewed the guidelines and objectives that have been articulated by the Quebec Court of Appeal and the Supreme Court of Canada with respect to the authorization process for Quebec class actions.[11] He then proceeded to apply these principles to the present case.
Article 575 (2) CCP (the facts alleged appear to justify the conclusions sought):
Certain of the Defendants argued that the Plaintiff should have restricted the scope of the class action to those Defendants which manufactured the opioid drugs that he alleged to have been prescribed and consumed. However, the Court, relying on the principles set out in Marcotte,[12] found that the Plaintiff has legal standing against each of the 16 Defendants regardless of whether or not he consumed their opioid products. Justice Morrison affirmed that the Supreme Court in Marcotte clarified and simplified the principle that “a class-action representative is not required to have a direct cause of action against each defendant in a class action” and pronounced that “[t]hat train has left the station and the issue need not be debated anew.”
The opioid drugs targeted by the Plaintiff contain a variety of active pharmaceutical ingredients, including fentanyl, hydrocodone, hydromorphone, methadone, morphine, oxycodone, oxymorphone, and codeine. The Defendants compared the present action to other multi-defendant class actions that had been authorized, and argued that in all such cases the subject products contained a common ingredient such as nicotine (in tobacco) or acetaminophen (in Tylenol).[13] However, the argument that the Plaintiff had improperly “lumped” the Defendants together despite the differences between their opioid products was held to be without merit as the purported differences were a distinction without a difference. Justice Morrison explained that neither the Supreme Court of Canada nor the Quebec Court of Appeal has established a criterion whereby the factual or legal situation for each defendant must be “identical”. In the present case, the Plaintiff alleged the requisite common element in that all putative class members were prescribed and consumed opioids and all suffer, or suffered from, OUD - a factual situation sufficient to establish legal standing against all Defendants, including those whose opioids were not consumed by the Plaintiff. Based on the allegations and evidence before him, Justice Morrison could infer that there will exist a class member with a valid cause of action against each Defendant.
The Court also rejected the Defendants argument that the proposed class action, if authorized, would be unprecedented, and even more complex and lengthier than the tobacco mega case[14], because of an infinite number of factual variations. In the present case, the one primary physical prejudice, OUD, is a determinant common factor among the putative class members. Justice Morrison concluded that the argument that the class action should not be authorized simply because it will be too large a case has no weight.
Justice Morrison also held that the Plaintiff established an arguable case on the basis of the alleged legal causes of action. As set out in the CCQ, manufacturers’ liability is a no-fault regime in the nature of a safety guarantee. The lack of sufficient warnings as to the dangers of a thing, including a prescription medicine, constitute a safety defect.[15] Therefore, a plaintiff alleging a safety defect does not need to prove the fault of the manufacturer.[16]
With respect to the Quebec Charter, the Court concluded that there is no need to “demonstrate a conspiracy to succeed under the Charter” and the Plaintiff “need not establish by evidence every element of his claim at the authorization stage”.
With regard to the application of the Competition Act, the Court found that the 2018 statement from Health Canada, filed as an exhibit by the Plaintiff, is sufficient to supplement any vagueness or imprecision in the allegations pertaining to the Defendants’ marketing activities. As stated by Justice Morrison, “[g]iven both the allegation that respondents acted in concert (as opposed to a conspiracy as argued by certain respondents) and the evidence emanating from Health Canada that refers to the issue of marketing as being industry-wide, the Court is of the view that for the purposes of authorization, it is not required that specific allegations be made in this regard against each respondent individually”. The Court concluded that the allegations and evidence demonstrated an arguable case as to the “intention” component of the claim under the Competition Act.
Article 575 (1) CCP (the claims of the members of the class raise identical, similar or related issues of law or fact):
The Defendants contended that the Plaintiff failed to meet the article 575(1) CCP criterion given the variety between the opioid drugs and the factual variations amongst class members which could result in different legal analyses. However, as explained in the Authorization Judgment, the Court’s role is to “avoid the courts repeating the analysis in multiple different and over applying law suits”. Justice Morrison observed that the suggestion that those who suffer from, or have suffered from, OUD should institute separate class or individual actions based on the particular opioids prescribed to them, is contrary to the principle of proportionality. The Court determined that the Plaintiff had alleged at least one common question and therefore the article 575(1) CCP criterion was met.
Article 575 (3) CCP (the composition of the class makes it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others or for consolidation of proceedings):
The Court held that the confidential nature of medical records and the unwillingness of class members to publicly acknowledge that they suffer from, or have suffered from, OUD makes it difficult for the Plaintiff to identify putative members and obtain a mandate to take part in these judicial proceedings on their behalf. The Court held that this criterion has been satisfied.
Article 575 (4) CCP (the class member appointed as representative plaintiff is in a position to properly represent the class members):
The Defendants argued, unsuccessfully, that the article 575(4) CCP criterion was not satisfied on the basis that the Plaintiff: (i) does not have a personal cause of action against each Defendant; (ii) lacks the requisite probity and credibility and does not understand the proceedings; and (iii) failed to advance the case. The Court found the Plaintiff to be credible, to have sufficient cause of action to proceed against each of the Defendants, and to have demonstrated his commitment to the case. The attack on the Plaintiff on a personal level, and the argument that the Plaintiff was not an adequate class representative because he testified that he had not read the entire 50 plus page proceedings, were found by Justice Morrison to be unworthy of counsel.
TAKE AWAYS
The potential magnitude and complexity of a multi-defendant class action which targets a class of drugs where there are differences between the products does not justify refusing to authorize the proposed class action if the plaintiff is able to demonstrate at least one determinant common question that advances the case in a not insignificant manner.
The principle established by the Supreme Court of Canada in Marcotte extends to the pharmaceutical industry and, applied to the present case, the Plaintiff is not required to have a direct cause of action against each Defendant. The Court found that the allegations and supporting evidence permitted it to infer that there will be class members who were prescribed and used opioids made, sold and/or distributed by each one of the Defendant pharmaceutical companies. The suggestion that there should be multiple actions or class actions against one or certain subsets of the Defendants is contrary to the principle of proportionality and the objective of providing access to justice which underlies class action legislation in Quebec.
The Quebec Opioid-related Damages and Health-Care Costs Recovery Act[17] came into force in November 2023, and specifically envisages class actions, not only by the Quebec government, but also by individuals and their heirs, for the recovery of damages resulting from opioid medication (including all of the opioids targeted in the present action). This legislation eases the burden of proof for plaintiffs, for example, by allowing causality to be established on the sole basis of statistical information or that which is drawn from various scientific studies and renders moot any issue related to prescription. As stated in the Authorization Judgment, this legislation applies to the present case.
The Authorization Judgment was issued almost five years after the proposed class action was instituted. While there are several reasons for the delay, there were pre-authorization hearings on a number of matters that required the Court to devote substantial time to the proposed action. In the Authorization Judgment, Justice Morrison expressed his concern that the filtering process for authorization of a class action still “continues to require the court to invest such important resources, in addition to the costs involved for all concerned, simply to determine whether the proposed class action is frivolous” and questioned whether respondents deployed the principle of proportionality in a way that misuses “precious judicial resources to the detriment of access to justice for others.” What transpired in this case suggests a need to re-examine and revise the legislation and principles guiding the authorization process so that respondents with deep pockets cannot impose hurdles into the process in cases where the applicant in a proposed class action has clearly demonstrated an arguable case.
1 Bourassa c. Abbott Laboratories Ltd., 2024 QCCS 1245. The class action was not authorized against an entity that had voluntarily dissolved a few years prior to the class action being instituted, as well as against another entity that had obtained protection under the Companies' Creditors Arrangement Act, RSC 1985, c C-36.
2 Lisa Belzak, MHSc; Jessica Halverson, MPH, MSW, The opioid crisis in Canada: a national perspective (June 2018) 38:6 Public Health Agency of Canada, Ottawa, Ontario, Canada (https://www.canada.ca/en/public-health/services/reports-publications/health-promotion-chronic-disease-prevention-canada-research-policy-practice/vol-38-no-6-2018/evidence-synthesis-opioid-crisis-canada-national-perspective.html).
3 https://www.canada.ca/en/health-canada/services/publications/healthy-living/canada-opioid-crisis-fact-sheet.html.
4 Sharma, B, et al. Opioid Use Disorders. Child Adolesc Psychiatr Clin N Am. 2016 Jul; 25(3): 473–487. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4920977/).
5 AMA Alliance. Prescription Opioid Epidemic: Know the Facts. (https://amaalliance.org/wp-content/uploads/2019/07/Opioid-White-Paper_Final_Template.pdf).
6 Following the institution of the class action, the plaintiff entered into seven settlements out of Court with 12 defendants that had, or have, limited activity in Quebec. The settlements were approved by the Court. Recently, the plaintiff requested the Court’s approval of two more settlements entered into with two other defendants but to date, a hearing for the approval of these settlements has not been scheduled.
7 The definition of the Class is slightly modified in the Authorization Judgment in order to account for diagnosis of OUD, as well as the exclusion of opioids that are solely and exclusively available for use in a hospital setting, and those that are covered by a prior class action settlement agreement (i.e., OxyContin and OxyNeo).
8 The hearing took place over 7 days in November 2022.
9 Lambert (Gestion Peggy) v. Écolait ltée, 2016 QCCA 659 at para. 28; Lévesque c. Nissan Canada inc., 2019 QCCS 609 at para. 7.
10 Homsy c. Google, 2023 QCCA 1220.
11 Desjardins Cabinet de services financiers inc. v. Asselin, 2020 SCC 30; L’Oratoire Saint Joseph du Mont Royal v. J.J., 2019 SCC 35, Infineon Technologies AG v. Option consommateurs, 2013 SCC 59.
12 Bank of Montreal v. Marcotte, 2014 SCC 55 at paras. 43-47.
13 Imperial Tobacco Canada ltée v. Conseil québécois sur le tabac et la santé, 2019 QCCA 358; Johnson & Johnson inc. c. Gauthier, 2020 QCCA 1666, the Court of Appeal dismissed defendant’s request for leave to appeal the judgment authorizing the class action.
14 In the tobacco case, the application for authorization was filed in 1998 and the class actions were authorized in 2005. The decision on the merits was rendered in 2015 and the Court of Appeal’s judgment, confirming in part the Superior Court’s decision, was issued in 2019.
15 Arts. 1468 and 1469 CCQ.
16 Imperial Tobacco Canada ltée v. Conseil québécois sur le tabac et la santé, 2019 QCCA 358 at paras. 215, 257, 286, 365 and 380. Note that at the trial on the merits on the case, the plaintiff will have to establish the safety defect of a defendant’s product, the harm suffered and the causal link between the two.
17 Chapter R-2.2.0.0.01.