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...