An Uncommon Prejudice: Goyette V. Glaxosmithkline Inc. And The Need To Demonstrate The Existence Of A Common Prejudice At The Authorization Stage Of A Class Action

Must all class members have suffered an identical "prejudice" or harm in order to justify the authorization of a proposed class action? According to a recent decision of the Québec Court of Appeal, this question must be answered with a Yes. In Goyette v. GlaxoSmithKline inc.1 (as well as in the Supreme Court of Canada's recent decision in Bou Malhab c. Diffusion Métromédia CMR inc.2), the Court of Appeal reaffirms the principle that the harm alleged by members of a proposed class must be common to all members. The injuries cannot be susceptible of infinite variation.

Facts

This decision arises in the context of a motion to authorize the bringin of a class action. Ms. Goyette alleged that the pharmaceutical manufacturer, GlaxoSmithKline (GSK) was liable for the harm she suffered as a result of false representations concerning the risks of addiction and withdrawal associated with a medication called Paxil®. She filed a class action for the following class:

All persons, (...) who reside or who resided in Canada (...) and to whom (...) the medication PAROXETINE, marketed under the name PAXIL, was prescribed since April 30, 1999 and who experienced addiction and withdrawal problems as a result of the use of this medication, as well as their heirs and assigns.[Our translation]

Refusal to Authorize the Class Action

Article 1003 of the Code of Civil Procedure (C.C.P.) defines the criteria which must be fulfilled before a class action can be authorized. In this particular case, the motion was dismissed because two of the criteria of article 1003 C.C.P. were not met.

The Court first examines different aspects of the claim to see if it raises identical, similar or related questions of law or fact (art. 1003 a) C.C.P.).

In determining whether this first condition is respected, the Court mainly considers whether there is an ascertainable harm that was suffered equally by all class members. This issue was first addressed in Voisins du train de banlieu de Blainville inc. c. Agence métropolitaine de transport, 2007 QCCA 236 (C.A.), a decision in which the Court dismissed a motion to authorize the institution of a class action because the prejudice alleged was susceptible of infinite variation. In Goyette v. GlaxoSmithKline inc., the Court concludes that no "common prejudice" was suffered by class members. As in the Voisins du train de banlieu de Blainville inc., the Court states that the damages suffered by class members are susceptible to limitless...