Davies, with a team consisting of Guy Du Pont, Nick Rodrigo and David Stolow, successfully represented Pharmascience Inc. in these proceedings. 

In February 2003, a newspaper article appeared in La Presse reporting that certain unnamed generic pharmaceutical manufacturers would have given "illegal" rebates and other benefits to pharmacists in Quebec and other provinces.  Two days later, based solely on this newspaper article, a proposed class action was launched.  The action sought $3.9 billion in damages against nine generic drug manufacturers on the grounds that these manufacturers would have allegedly failed to deduct the "value" of these rebates and other "benefits" from the prices of medications that all Quebecers would have paid under Quebec's publicly administered drug insurance plan or under private insurance plans.

By judgment of January 17, 2006, Québec Superior Court Judge, Claudine Roy, refused to allow the proposed class action to proceed.  Judge Roy held that although the 2003 amendments to Quebec's class action authorization (certification) regime had reduced the criteria for authorization to a minimum, a motion seeking authorization of a class action had to, at least, contain a sufficient factual foundation for the court to appreciate the seriousness of the proposed class action.  Judge Roy held that, in this case, this information was severely lacking ("faisait cruellement défaut") and that there simply was no basis for the Court to find that there was any appearance of fault, damages, or a causal link that would have triggered the liability of the manufacturers.  Judge Roy held that the proposed action, which had been amended and modified on numerous occasions, was a "moving target" that lacked serious factual allegations and that she was simply not prepared to conclude that this was a serious case based on "pure speculations" drawn from a newspaper article.

In its judgment, the QCA agreed with Judge Roy's holding that there was no causal link between the alleged fault (i.e. the alleged payment of rebates to pharmacists) and the alleged prejudice suffered by Quebecers (i.e. the alleged higher prices for medications) and that the claims that Quebecers paid higher contributions as a result of the alleged actions of the generic drug manufacturers was hypothetical, purely speculative and had not been established.  The QCA also held, in obiter, that the two proposed designated representatives of the class, who had only purchased medications from four of the generic manufacturers in question, had failed to establish that they were adequate representatives for the entire class.  Finally, the QCA reiterated that a judge of the Superior Court exercises discretion in determining whether the criteria for authorization are met and that Option Consommateurs failed to establish that the trial judge had incorrectly exercised this discretion.

Davies is involved in some of the largest and most complex class action litigation matters in the country and this victory cements Davies' pre-eminent reputation in this field.

Please do not hesitate to call Guy Du Pont (514-841-6406), Nick Rodrigo (514-841-6548) or David Stolow (514-841-6567) if you would like further information on this or any class action lawsuits in the Province of Quebec. For information concerning class action lawsuits in the Province of Ontario, please contact Kent Thomson (416-863-5566) or Sandra Forbes (416-863-5574).

Davies Ward Phillips & Vineberg LLP, with over 235 lawyers, practises nationally and internationally from offices in Toronto, Montréal, New York and an affiliate in Paris and is consistently at the heart of the largest and most complex commercial and financial matters on behalf of its North American and overseas clients.

The information and comments herein are for the general information of the reader and are not intended as advice or opinions to be relied upon in relation to any particular circumstance. For particular applications of the law to specific situations, the reader should seek professional advice.
 
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May 23, 2008