I. INTRODUCTION

[1]    Petitioner has filed a Motion to Authorize the Bringing of a Class Action and to Ascribe the Status of Representative (the “Motion for Authorization”) against the Respondents.

[2]    Two of the Respondents, Sanofi-Aventis Canada Inc. (“Sanofi Canada“) and Meditative Technologies LLC (“Meditative”), are seeking leave to conduct a preliminary examination of Petitioner pursuant to article 574 of the Code of civil procedure (“Sanofi

Canada’s Motion” and “Meditative’s Motion“, or collectively the “Motions”). The present judgment deals with both Motions.

[3]    The Court must decide the Motions before the hearing on the Motion for Authorization.

II. BRIEF DESCRIPTION OF THE PROPOSED CLASS ACTION

[4]    Petitioner seeks authorization to bring a class action against Respondents on behalf of the following class, of which he is a member :

“All persons in Canada who, on or after December 11^th, 2012, purchased or ingested “Allerject”, also known as “Auvi-Q”, including DIN02382059/0.15mg/0.15mL epenephrine and DIN02382067/0.3mg/0.3mL epinephrine (”Allerject”).” (hereinafter referred to as the”Group”)

[5]    Allerject is a compact epinephrine auto-injector to be used in response to severe allergic reactions.

[6]    On June 13, 2015, Sanofi Canada recalled two lots of the pediatric variant of Allerject. On October 28, 2015, Sanofi Canada issued a general recall of all Allerject products.

[7]    The Petitioner alleges that he was prescribed and initially obtained Allerject on or about December 2014. Although the Petitioner did not have a severe allergic reaction requiring that he use Allerject, the Petitioner alleges that he was alarmed to learn that had he had the need to use Allerject in response to a severe allergic reaction, said product may not have worked properly or at all.

[8]    The Petitioner further alleges that he was put to the trouble of locating and obtaining a replacement device.

[9]    The Petitioner contends that Respondents committed faults in that Allerject was unsound, defective, unsafe or unfit for the purpose for which it was intended. The Petitioner thus proposes to bring an action in damages for product liability against the Respondents.

[10] As a result, the Petitioner is claiming for himself and each member of the Group compensatory damages, moral damages and punitive damages pursuant to the Consumer Protection Act, R.S.Q., c. P-40.1.

III. ANALYSIS

1- The law

[11]       Before authorizing a class action, the Court must be satisfied that the criteria of article 575 of the Code of civil procedure (“CCP”) are met. Article 574 CCP gives the Court discretion to determine whether the evidence a party wishes to submit or the examination it wishes to hold is relevant or not.

[12]       Articles 574 and 575 CCP read as follows:

574. Prior authorization from the court is required for a person to institute a class action.

The application for authorization must state the facts on which it is based and the nature of the class action, and describe the class on whose behalf the person intends to act. It must be served on the person against whom the person intends to institute the class action, with at least 30 days’ notice of the presentation date.

An application for authorization may only be contested orally, and the court may allow relevant evidence to be submitted.

575. The court authorizes the class action and appoints the class member it designates as representative plaintiff if it is of the opinion that

(1)  the claims of the members of the class raise identical, similar or related issues of law or fact;

(2)  the facts alleged appear to justify the conclusions sought;

(3)  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; and

(4)  the class member appointed as representative plaintiff is in a position to properly represent the class members.

[13]        In 2006, Justice Clément Gascon, who was then sitting in Superior Court, issued a series of guidelines to help the Court having to decide a request for the presentation of evidence under article 1002 CCP (which is now 574 CCP):[1]

« [20]       Cela dit, au chapitre du mérite maintenant, le Tribunal retient de la jurisprudence pertinente les sept (7) propositions suivantes comme devant servir de guide dans l'analyse des requêtes formulées par les Banques:

1)      puisque, dans le cadre du mécanisme de filtrage et de vérification qui caractérise la requête en autorisation, le juge doit, si les allégations de faits paraissent donner ouverture au droit réclamé, accueillir la requête et autoriser le recours, il n'y aura pas, dans tous le cas, la nécessité d'une preuve;

2)      en vertu du nouvel article 1002 C.p.c., le retrait de l'obligation d'un affidavit et la limitation des interrogatoires à ceux qui sont autorisés assouplissent et accélèrent le processus sans pour cela stériliser le rôle du juge, car la loi lui reconnaît la discrétion d'autoriser une preuve pertinente et appropriée dans le cadre du processus d'autorisation;

3)      c'est en utilisant sa discrétion, qu'il doit bien sûr exercer judiciairement, que le juge doit apprécier s'il est approprié ou utile d'accorder, dans les circonstances, le droit de présenter une preuve ou de tenir un interrogatoire. Idéalement et en principe, cette preuve et ces interrogatoires se font à l'audience sur la requête en autorisation et non hors cour;

4)      pour apprécier s'il est approprié ou utile d'accorder la demande faite, le juge doit s'assurer que la preuve recherchée ou l'interrogatoire demandé permettent de vérifier si les critères de l'article 1003 C.p.c. sont remplis;

5)      dans l'évaluation du caractère approprié de cette preuve, le juge doit agir en accord avec les règles de la conduite raisonnable et de la proportionnalité posées aux articles 4.1 et 4.2 C.p.c., de même qu'en accord avec la règle de la pertinence eu égard aux critères de l'article 1003 C.p.c.;

6)      le juge doit faire preuve de prudence et ne pas autoriser des moyens de preuve pertinents au mérite puisque, à l'étape de l'autorisation du recours, il doit tenir les allégations de la requête pour avérées sans en vérifier la véracité, ce qui relève du fond. À cette étape de l'autorisation, le fardeau en est un de démonstration et non de preuve;

7)      Le fardeau de démontrer le caractère approprié ou utile de la preuve recherchée repose sur les intimés. Aussi, il leur appartient de préciser exactement la teneur et l'objet recherchés par la preuve qu'ils revendiquent et les interrogatoires qu'ils désirent, en reliant leurs demandes aux objectifs de caractère approprié, de pertinence et de prudence déjà décrits.

L'objectif recherché n'est pas de permettre des interrogatoires ou une preuve tous azimuts et sans encadrement, mais plutôt d'autoriser uniquement une preuve et/ou des interrogatoires limités sur des sujets précis bien circonscrits. »

[14]       The Court enjoys broad discretion in the analysis of the criteria of article 575 CCP. It must exercise that discretion while taking into account the principle of proportionality set forth in article 18 CCP, a principle that applies to class actions in the same way that it does to any other matter of a civil nature[2].

[15]       In short, the evidence sought must be useful, relevant and “proportional”. Although the Motions are not contested by Petitioner, the Court will nevertheless analyse the Motions using the abovementioned guidelines.

2- The examination of Petitioner

[16]        Respondents submit that the examination of the Petitioner is necessary in order for the Court to exercise its discretion judicially and verify that the allegations meet the four criteria of article 575 CCP.

2.1. Sanofi Canada’s Motion

[17]        Sanofi Canada wishes to examine Petitioner on the following issues:

“(a) The facts and circumstances underlying the Petitioner’s individual right of action and his claim for compensatory, moral and punitive damages, including the steps taken by Petitioner to obtain a replacement device;

(b) The steps undertaken by the Petitioner to ascertain the composition of the group and to contact other members of the class action and gather information;

(c) The Petitioner’s suitability and ability to act as representative, including the knowledge acquired by the Petitioner with regard to the alleged cause of action and his ability to assist class members and counsel;”

2.1.1. The Petitioner’s personal right of action

[18]        Sanofi Canada contends that the facts alleged by Petitioner in the Motion for Authorization are vague and contradictory.

[19]        It adds that Petitioner’s personal action must, in its own right, meet the criteria of article 575 CCP[3].

[20]        Sanofi Canada submits that the facts alleged by Petitioner do not show a valid personal cause of action and are not sufficient to ground an “arguable” case[4]. There are no information concerning the damages allegedly suffered by Petitioner other than the fact that he was alarmed to learn that had he had the need to use Allerject in response to an allergic reaction, the product may not have worked properly or at all; and that as a result of the recall he was put to the trouble of locating and obtaining a replacement device[5].

[21]        There are also contradictions as to the use of the product. Petitioner alleges that he never used Allerject but nonetheless claims damages pursuant to the purchase and use of the product.

[22]        The Court will therefore authorize the examination of the Petitioner in order to obtain information as to whether he has a good color of right against Sanofi Canada, and more particularly as to the details of his purchase and use of the product, as well as the nature and extent of the moral and physical damages he allegedly suffered.

2.1.2. The Petitioner’s ability to represent the Group adequately

[23]        It is well recognized that three factors must be considered in determining whether a petitioner can be an adequate representative: his interest to act, his competence, and the absence of conflict with the other group members[6].

[24]        Petitioner’s competence will generally be assessed in light of the steps taken by him before getting involved in the class action, the inquiries that he made in support of the action that he wishes to institute, and his ability to direct the process of bringing the action.

[25]        Sanofi Canada submits that the Motion for Authorization only contains allegations akin to legal conclusions regarding Petitioner’s suitability as representative of the class sought and his interest in pursuing the claim[7].

[26]        In light of the foregoing, the Court will authorize Sanofi Canada to examine Petitioner on his suitability as representative of the class sought and his interest in pursuing the claim.

2.1.3. The composition of the Group

[27]        Petitioner alleges that 492,000 units of Allerject have been sold in Canada[8]. Sanofi Canada submits that the Motion for Authorization fails to provide any information on the composition of the Group and that the Petitioner is apparently assuming that all persons who have purchased Allerject are members of the Group regardless of whether they have suffered a prejudice or not.

[28]        The Court is entitled to be provided with minimal information on the actual composition of the Group, its size and essential characteristics in order to determine whether the requirement of article 575(3) has been met.

[29]        The Court will therefore allow Sanofi Canada to examine Petitioner on any steps undertaken to assess the size of the Group and its characteristics and gather information in this regard, as well as whether Petitioner has attempted to communicate with any potential members.

2.2. Meditative’s Motion

[30]        The examination of the Petitioner that Medivative wishes to conduct seeks to provide the Court information with respect to the following:

“a) Whether the Allerject device purchased by the Petitioner was defective and the nature of the "trouble" the Petitioner was put to when he learned of the recalls alleged in the Motion for Authorization;

b)    When and how Petitioner became aware of the facts alleged  in the Motion for Authorization;

c)    The nature and extent of the enquiry conducted by the Petitioner before instituting the Motion for Authorization;

d)  The nature and extent of communications with proposed class members by the Petitioner before and after instituting the Motion for Authorization;

e)  The Petitioner’s capacity to act as class representative, notably his capacity to participate in these legal proceedings and to communicate with the proposed class members and the absence of any conflict of interest.”

[31]        Meditative submits that the relevance and usefulness of the examination of the Petitioner with respect to each of the criteria of article 575 CCP is as follows:

2.2.1. The criterion of Article 575 (1) CCP

[32]        The examination of the Petitioner will assist this Court in determining:

a)     Whether the Petitioner’s situation is unique or raises issues and questions of law or fact that are common with the proposed class;

b)     Whether the class definition is appropriate.

2.2.2. The criterion of Article 575 (2) CCP

[33]        The examination of the Petitioner will assist this Court in determining:

a)     Whether the Petitioner has a personal cause of action;

b)     Whether the Petitioner suffered harm in relation to the facts alleged in the Motion for Authorization.

2.2.3. The criterion of Article 575 (3) CCP

[34]        The examination of the Petitioner will assist this Court in determining:

a)     Whether the Petitioner communicated or attempted to communicate with other proposed class members before the institution of the action;

b)     Whether the Petitioner conducted any inquiry before the institution of the action;

c)      Whether the Petitioner has information on the size and characteristics of the proposed class.

2.2.4. The criterion of Article 575 (4) CCP

[35]        Finally, the examination of the Petitioner will assist this Court in determining whether the Petitioner would be in a position to properly represent the proposed class members.

a)     Whether the Petitioner has the required legal interest to institute this class action and act as adequate representative for the class;

b)     Whether the Petitioner has the capacity to act as the class representative;

c)      Whether the Petitioner has a true and genuine interest in the proposed class action.

IV. CONCLUSIONS

[36]        The Court finds that the examination of the Petitioner will enable the Court to conduct an efficient verification of the criteria of article 575 CCP in a useful and judicious manner, as well as shed light on some of the allegations of the Motion for Authorization that may be incorrect or incomplete.

[37]        The evidence Sanofi Canada and Meditative seek to submit through the examination of the Petitioner is useful and relevant with respect to the opportunity to authorize or not the institution of the class action in this case. The evidence sought to be submitted also satisfies the requirements of articles 9, 18 and 19 CCP.

FOR THESE REASONS, THE COURT:

[38]        A) Sanofi Canada’s Motion

[39]        AUTHORIZES the Respondent Sanofi-Aventis Canada Inc. to examine Petitioner on the following subject matters for a maximum duration of two (2) hours:

(a) The facts and circumstances underlying the Petitioner’s individual right of action and his claim for compensatory, moral and punitive damages, including the steps taken by Petitioner to obtain a replacement device;

(b) The steps undertaken by the Petitioner to ascertain the composition of the group and gather information in this regard and to contact other members of the class action;

(c) The Petitioner’s suitability and ability to act as representative, including the knowledge acquired by the Petitioner with regard to the alleged cause of action and his ability to assist class members and counsel;

[40]        B) Meditative’s Motion

[41]        AUTHORIZES the Respondent Meditative Technologies LLC to examine Petitioner out of court on the following subject matters for a maximum duration of one (1) hour:

(a) Whether the Allerject device purchased by the Petitioner was defective and the nature of the "trouble" the Petitioner was put to when he learned of the recalls alleged in the Motion for Authorization;

(b) When and how Petitioner became aware of the facts alleged in the Motion for Authorization;

(c) The nature and extent of the enquiry conducted by the Petitioner before instituting the Motion for Authorization;

(d) The nature and extent of communications with proposed class members by the Petitioner before and after instituting the Motion for Authorization;

(e) The Petitioner’s capacity to act as class representative, notably his capacity to participate in these legal proceedings and to communicate with the proposed class members and the absence of any conflict of interest.

[42]        ORDERS that the examinations be held within thirty days of the date of the present judgment;

[43]        COSTS to follow suit.