Photo of Stephen McConnell

Several years ago we vacationed in Toronto. Back then, the Drug and Device Law Son split his time between hockey and videogames. He was a goalie, so, like his dad, he was always on defense. We visited the Hockey Hall of Fame, tap-danced on the glass floor in the CN Tower, had dinner at Wayne Gretzky’s restaurant, took in a Maple Leafs game, and wandered around the huge underground mall. With the sort of weather that reigns in the True North, an underground mall (really an entire underground city) makes a lot of sense. We noticed that many of the stores had a slogan on the walls: “The World Needs More Canada.” It’s hard to argue with that. Canada has pretty much everything we like (a nice standard of living, cultural offerings, and poutine), and not so much of those things we don’t like (crime, arrogance, and crocodiles).   How can you not admire a country that has given us Joni Mitchell, Bobby Orr, and Pamela Anderson, as well as the inventors of the zipper, basketball, and Trivial Pursuit?  And we look back with fondness at a college road trip adventure, when we drifted across the border to empty the town of Magog of Molson Brador.  (Bexis points out that Canada is also responsible for the rock groups Rush and BTO.  Hmmmm.  That fact might prompt us to reconsider the whole premise of this paragraph.)

Every once in a while we have the opportunity to blog about drug and device developments north of the border, involving matters also being litigated in the USA. As we said above, there’s a lot to like about Canada.  But its class action law is usually something we don’t like so much.  Canada’s application of class action certification rules is considerably more liberal than the corresponding rules here — excepting, perhaps, certain rogue counties in Southern Illinois.  Nevertheless, we are pleased to relay some good news from the Canadian courts.  Our friends at Covington, specifically Michael Imbroscio, sent us a decision by the Quebec Superior Court rejecting certification (what they call “authorization” in Quebec) of a proposed class action alleging that Accutane (isotretinoin) caused inflammatory bowel disease (IBD), in Lebrasseur v. Hoffmann – La Roche Limitee, (Quebec Superior Court file no. 500-06-000512-109). The decision is in French, which we cannot read (though the Drug and Device Law Son says he can, and even has the grades to prove it), so we are trusting Covington’s summary.  But for those of you who claim the ability to read Proust and Moliere in the original, here is a copy of the Quebec court’s opinion.

The court held that the “Petitioner” (what they call a plaintiff in Quebec) had not met the requirement that the facts alleged “seem to justify” the conclusions sought. The court observed that the Petitioner failed to file medical and scientific articles mentioned in his briefing with respect to the alleged association between Accutane and an increased risk of Crohn’s (a form of IBD). The Petitioner failed to explain how warnings about IBD in the product monograph were insufficient or failed to disclose the risks adequately. Moreover, the Quebec court held that the mere mention of such risks in the monograph was not a basis to conclude that there was “an appearance of right” with respect to the alleged causal link, the alleged dangerous nature of the product, or the manufacturer’s alleged failure to warn. The Court emphasized that the Petitioner’s medical file did not contain any statement or opinion that would establish a causal link between the Accutane use and the Petitioner’s IBD. Consequently, the facts alleged were insufficient for the Court to conclude that there was a serious appearance of right. Good stuff, ay?

We cannot help but mention that now the “science” behind Accutane IBD claims has been held to be inadequate in both United States federal courts and Canada, leaving one judge in New Jersey as the outlier.  (There is a hockey team in New Jersey.  They call themselves the Devils.  They do, indeed, represent everything wicked about hockey.  And, yes, the author of this post is an ardent Flyers fan.)

While it was not necessary for the Quebec court in the LeBrasseur case to do so, it went on to address other requirements for a class action authorization in Quebec. It concluded that the Petitioner did not have a sufficient interest to institute a class action, that he had limited involvement in the file, and that he did not have the requisite capacities to successfully lead or make decisions that would be in the best interests of the proposed class.  All in all, we can certainly see why “le Tribunal rejette la requite en autorisation.”

For such a sound opinion on class certification, we have only word for the Quebec court (and for Covington in sending it our way): Merci.