Bourassa c. Abbott Laboratories Ltd.  
2022 QCCS 1823  
SUPERIOR COURT  
(Class Action Chamber)  
CANADA  
PROVINCE OF QUEBEC  
DISTRICT OF MONTREAL  
N° :  
500-06-001004-197  
DATE : May 20, 2022  
_____________________________________________________________________  
PRESIDING: THE HONOURABLE GARY D.D. MORRISON, J.S.C.  
_____________________________________________________________________  
JEAN-FRANÇOIS BOURASSA  
Applicant  
v.  
ABBOTT LABORATORIES LTD.  
PHARMASCIENCE INC.  
TEVA CANADA LIMITED  
PRO DOC LTÉE  
PURDUE FREDERICK INC.  
PURDUE PHARMA  
Petitioner-Respondents  
______________________________________________________________________  
JUDGMENT  
(Respondents’ applications to order the communication of documents and the  
examination of Applicant)  
_____________________________________________________________________  
500-06-001004-197  
PAGE : 2  
[1]  
Six1 of the plus twenty-five respondents to a proposed class action relating to  
Opioid Use Disorder have filed applications, some jointly, seeking Court orders requiring  
primarily the communication of all or part of Applicant’s medical and pharmaceutical  
records and/or permitting his examination prior to authorization.  
[2]  
For purposes of clarity, Petitioner-Respondents are not all presently seeking  
authorization to file documents.  
1. CONTEXT  
[3]  
To put these applications into context, in 2021, the Court had already rendered in  
the present file two judgements in relation to such issues.  
[4]  
Since then, however, the prior applicant was replaced by Mr. Bourassa, and this  
at the end of December 2021. This change has given rise to these new, yet similar  
applications regarding the current Applicant.  
[5]  
Applicant argues that the Court should now simply apply the two 2021  
judgements and, as well, declare that the current applications constitute an abuse of  
procedure with a resulting order that Petitioner-Respondents pay the extra-judicial fees  
and expenses of his counsel.  
[6]  
In addition to the foregoing, twelve of the respondents are actively seeking  
authorization to produce proof for availability during the authorization hearing. The Court  
has reserved judgement on those applications.  
[7]  
It should be noted that Applicant Bourassa has already provided certain  
information, including documents and an affidavit, in response to various requests by  
the Petitioner-Respondents. This has resulted in a rather small reduction in the  
conclusions sought by them. Applicant contests those that remain.  
[8]  
The Court will analyze the applications separately, per party. However, it will  
address the nature of the proposed class action and the applicable law on a collective  
basis.  
2. LEGAL PRINCIPLES  
[9]  
To be clear, not all Petitioner-Respondents are seeking permission to access  
Applicant’s medical and pharmaceutical records. However, most do seek access to  
1
The six Petitioner-Respondents are Abbott Laboratories Ltd., Pharmascience Inc., Teva Canada  
Limited, Pro Doc Ltée, Purdue Frederick Inc. and Purdue Pharma. The Court refers to them as  
respondents since there is no action at law against them yet.  
500-06-001004-197  
PAGE : 3  
those records with a view to taking cognizance of the content thereof and then perhaps  
ultimately, seeking such permission.  
[10] In this context, the Courts analysis is nonetheless guided by the same legal  
principles applicable to applications to adduce evidence. So too, applications to  
examine Applicant for authorization purposes. The goal of these various applications is  
essentially the same, to put evidence before the court with a view to contesting the  
authorization of the proposed class action.  
[11] An extensive list of the principles applicable to the issue of relevant proof,  
envisaged by Art. 574 Civil Code of Procedure, as stated over time by the Court of  
Appeal and the Supreme Court of Canada, has been enumerated by Justice Donald  
Bisson2, as follows:  
[17]  
Les demandes de preuve appropriée à l’étape de l’autorisation sont  
prévues à l’article 574 Cpc. La jurisprudence de la Cour d’appel et de la Cour  
suprême du Canada nous enseigne quels sont les critères applicables :  
le juge dispose d’un pouvoir discrétionnaire afin d’autoriser une preuve  
pertinente et appropriée ainsi que la tenue d’un interrogatoire du  
représentant, dans le cadre du processus d’autorisation;  
une preuve n’est appropriée que si elle est pertinente et utile à la  
vérification des critères de l’article 575 Cpc. Le consentement de la  
partie demanderesse à une preuve suggérée par la défense ne suffit pas  
à en autoriser le dépôt;  
la preuve documentaire et l’interrogatoire proposés doivent respecter les  
principes de la conduite raisonnable et de la proportionnalité posés aux  
articles 18 et 19 Cpc;  
la vérification de la véracité des allégations de la demande relève du  
fond. Une partie défenderesse ne peut mettre en preuve des éléments  
qui relèvent de la nature d’un moyen de défense au mérite;  
le tribunal doit analyser la demande soumise à la lumière des  
enseignements récents de la Cour suprême du Canada et de la Cour  
d’appel sur l’autorisation des actions collectives et qui favorisent une  
interprétation et une application libérales des critères d’autorisation;  
2
Ward c. Procureur général du Canada, 2021 QCCS 109, para. 17-21; Morfonios (Succession de  
Sarlis) c. Vigi Santé ltée, 2020 QCCS 4351, para. 37-41; Lauzon c. Municipalité régionale de comté  
(MRC) de Deux-Montagnes, 2019 QCCS 4650, para. 37-38.  
500-06-001004-197  
PAGE : 4  
à ce stade, la finalité de la demande se limite au seuil fixé par la Cour  
suprême du Canada, soit la démonstration d’une cause défendable. Le  
tribunal doit se garder d’autoriser une preuve qui inclut davantage que ce  
qui est strictement nécessaire pour atteindre ce seuil;  
le tribunal doit se demander si la preuve requise l’aidera à déterminer si  
les critères d’autorisation sont respectés ou si elle permettra plutôt de  
déterminer si le recours est fondé; dans cette dernière hypothèse, la  
preuve n’est pas recevable à ce stade;  
la prudence est de mise dans l’analyse d’une demande de permission de  
produire une preuve appropriée; il s’agit de choisir une voie mitoyenne  
entre la rigidité et la permissivité;  
il doit être démontré que la preuve demandée est appropriée et pertinente  
dans les circonstances spécifiques et les faits propres du dossier,  
notamment en regard des allégations et du contenu de la demande  
d’autorisation;  
le fardeau de convaincre le tribunal de l’utilité et du caractère approprié  
de la preuve repose sur la partie qui la demande;  
le tribunal ne doit pas laisser les parties produire une preuve volumineuse  
et ne doit en aucun cas examiner la preuve produite en profondeur  
comme s’il s’agissait d’évaluer le fond de l’affaire;  
le processus d'autorisation d’une action collective n’est pas, du point de  
vue de la preuve, une sorte de préenquête sur le fond. C’est un  
mécanisme de filtrage;  
l’admission de preuve appropriée doit être faite avec modération et être  
réservée à l’essentiel et l’indispensable. Or, l’essentiel et l’indispensable,  
du côté du demandeur, devraient normalement être assez sobres vu la  
présomption rattachée aux allégations de fait qu’énonce sa procédure. Il  
devrait en aller de même du côté de la défense, dont la preuve, vu la  
présomption attachée aux faits allégués, devrait être limitée à ce qui  
permet d’en établir sans conteste l’invraisemblance ou la fausseté. C’est  
là un « couloir étroit »;  
puisque le fardeau du demandeur à l’autorisation en est un de logique et  
non de preuve, il faut conséquemment éviter de laisser les parties passer  
de la logique à la preuve (prépondérante) et de faire ainsi un préprocès,  
ce qui n’est pas l’objet de la démarche d’autorisation;  
500-06-001004-197  
PAGE : 5  
pour échapper à la perspective d’une action collective, la partie  
défenderesse souhaitera généralement présenter une preuve destinée à  
démontrer que l’action envisagée ne tient pas et, pour ce faire, elle  
pourrait bien forcer la note, sur le thème « abondance de biens ne nuit  
pas ». Le juge doit résister à cette propension, tout comme il doit se  
garder d’examiner sous toutes leurs coutures les éléments produits par  
l’une et l’autre des parties, au risque de transformer la nature d’un débat  
qui ne doit ni empiéter sur le fond, ni trancher celui-ci prématurément, ni  
porter sur les moyens de défense;  
à l’autorisation, le tribunal doit simplement porter un regard sommaire sur  
la preuve, qui devrait elle-même être d’une certaine frugalité;  
dans tous les cas, la preuve autorisée doit permettre d’évaluer les quatre  
critères que le juge de l’autorisation doit examiner et non le bien-fondé du  
dossier. Et si, par malheur, le juge de l’autorisation se retrouve devant  
des faits contradictoires, il doit faire prévaloir le principe général qui est  
de tenir pour avérés ceux de la demande d’autorisation, sauf s’ils  
apparaissent invraisemblables ou manifestement inexacts;  
si l’on ne veut pas que les actions collectives accaparent une part indue  
des ressources judiciaires, ressources limitées, il serait donc utile, dans  
l’état actuel du droit, que l’on évite de faire au stade de l’autorisation ce  
qui, en réalité, appartient au fond.  
[References omitted.]  
[12] In a recent decision3, the Court of Appeal confirmed anew its decision in Durand  
c. Subway Franchise Systems of Canada4, to the effect that not only does proof at the  
authorization stage need be essential, indispensable and limited, but that it must without  
question or doubt (“sans conteste”) demonstrate that an allegation against a respondent  
is unlikely or is false, and this so as to avoid a contradictory debate at this early stage.  
In other words, the Court of Appeal has once again warned against conducting a trial  
prior to the trial.  
[13] The requirement that evidence by a respondent need be essential, indispensable  
and limited is a high standard for a respondent to meet. This is intentionally so because  
the Court is to take as proven the allegations of fact set forth in the application for  
authorization to institute a class action. As a result, the Court should avoid allowing  
proof to be filed by a respondent that will lead down the slippery slope to an adversarial  
debate akin to a trial at the authorization hearing.  
3
Nashen c. Station Mont-Tremblant, 2022 QCCA 415, para. 28.  
2020 QCCA 1647, para. 50-54.  
4
500-06-001004-197  
PAGE : 6  
[14] In fact, even if the Court authorizes a respondent to file proof, the authorization  
petitioner is not obliged to contest that proof, or even to provide an answer in response  
thereto5.  
[15] Consequently, there is a very limited purpose to allowing access to contradictory  
evidence at the authorization stage. To use an expression from the decision of the  
Court of Appeal in Allstate du Canada, compagnie d'assurances c. Agostino, the judge  
in deciding on relevant proof should use moderation and prudence, applying a “couloir  
étroit6, a narrow corridor that runs between the rigidity of respecting the limited filtering  
process and a generous permissiveness that can mistakenly lead the judge to conduct  
an analysis of the merits of the claim.  
3. NATURE OF THE PROPOSED CLASS ACTION  
[16] In order to determine what, if any, documentation or information pertaining to an  
applicant that a respondent should be authorized to access, it is important to  
understand the nature of the class action an applicant seeks to institute, as this  
represents the context in which the evidence is to be analyzed with a view to  
determining whether it is essential, indispensable and limited.  
[17] An appropriate starting point in the present matter is the class definition, as  
described at paragraph 1 of the Re-Amended Application, which reads as follows:  
All persons in Quebec who have been prescribed and consumed any one or  
more of the opioids manufactured, marketed, distributed and/or sold by the  
Defendants between 1996 and the present day (“Class Period”) and who suffer  
or have suffered from Opioid Use Disorder, according to the diagnostic criteria  
herein described.  
The Class includes the direct heirs of any deceased persons who met the  
above-mentioned description.  
The Class excludes any person's claim, or any portion thereof, subject to the  
settlement agreement entered into in the court file no 200-06-000080-070,  
provided that such settlement agreement becomes effective as a result of the  
issuance of the requisite court approvals.  
[18] The definition contains a conditional exclusion regarding a settlement agreement  
in another legal action, which in fact relates to a prior Canadian-wide class action  
involving two specific drugs.  
5
Id., para. 53.  
2012 QCCA 678, para. 36.  
6
500-06-001004-197  
PAGE : 7  
[19] Another exclusion, or what respondents qualify as a “carve-out”, is stated as  
follows at paragraph 2.4.2 of the Re-Amended Application:  
[…] However, to the extent that any of the opioids listed in the following  
paragraphs were solely and exclusively available for use in a hospital setting  
(e.g., not available at any time during the Class Period to be prescribed for use in  
the home), such opioids are not the subject of the present Class Action.  
[20] That said, the parties do not agree as to what is the true nature of the legal  
syllogism being proposed by Applicant. And although the Court is not to decide the  
debate as to that authorization issue at this preliminary stage, it is important for it to  
understand what issues will be raised at the authorization hearing.  
[21] Applicant argues that the proposed action is based on civil liability for injury  
caused by a safety defect regarding the medication, including the lack of sufficient  
warnings as to the risks and dangers involved in the use thereof, the whole as per  
Articles 1468 and 1469 Civil Code of Quebec.  
[22] Such a safety defect regime has been described by the Court of Appeal as a  
no-fault regime7, one that is applicable to prescription medication8.  
[23] Applicant argues that, accordingly, at the authorization stage, all that need be  
demonstrated, through allegations to be held as true, is that he suffered Opioid Use  
Disorder having taken prescribed opioid medication manufactured or sold by one or  
more of the present respondents.  
[24] Petitioner-Respondents consider Applicant’s characterization of his legal  
syllogism to be an oversimplification.  
[25] They argue that in light of Art. 1469 C.C.Q., an integral part of Applicant’s  
proposed action based on a safety defect is the so-called lack of sufficient warnings as  
to the risks and dangers of the prescribed medications, which is specifically identified as  
a source of negligence at paragraph 2.2 of the Re-Amended Application and further, as  
one of the common questions at pages 45 to 46 and 49 thereof.  
[26] Accordingly, they propose that the issue of warnings will need be addressed at  
the authorization hearing.  
7
Imperial Tobacco Canada ltée c. Conseil québécois sur le tabac et la santé, 2019 QCCA 358;  
Brousseau c. Laboratoires Abbott limitée, 2019 QCCA 801.  
Brousseau c. Laboratoires Abbott limitée, supra, note 7.  
8
500-06-001004-197  
PAGE : 8  
[27] In addition, respondents generally argue that Applicant Bourassa will also need  
to address another component of his proposed class action, being that all respondents  
have also committed a civil law fault by marketing their medications through  
misrepresentations. This, they remind the Court, is not simply stated by Applicant in  
passing but rather, covers allegations from paragraph 2.39 to 2.124, found at pages 16  
to 32 of the Re-Amended Application and, as well, in the common questions 5.4 to 5.6  
and 5.11.  
[28] Moreover, they argue, Applicant also alleges that the respondents’ conduct  
contravenes the Competition Act9, the Civil Code of Quebec10 and the Quebec Charter  
of Human Rights and Freedoms11, thereby giving rise not only to compensatory  
damages but also to punitive damages and to pecuniary damages recoverable on an  
individual basis.  
[29] For these reasons, Petitioner-Respondents contend that Applicant’s legal  
syllogism is not as simple as he contends and that the various elements thereof are  
reflected in the common questions, such that their applications should be analyzed  
taking all such elements into consideration.  
4. THE PARTIES’ RESPECTIVE POSITIONS  
[30] In general terms, and in keeping with their position that Applicant Bourassa must  
establish at authorization a defendable case against each individual respondent he  
seeks to sue in an eventual class action, the present Petitioner-Respondents seek to  
obtain information from him that will enable them to evaluate which of their products he  
took, when and for how long, and this so as to enable them to plead principally:  
- that their products could not have caused his Opioid Use Disorder;  
- that he may have used OxyContin and/or NeoContin and, if so, would be  
covered by a settlement agreement in the prior Canada-wide class action  
should it be finalized;  
- that he may not be an appropriate class representative.  
[31] They argue that there are contradictions in Applicant’s allegations and  
documents that necessitate additional information and, as well, his examination, with a  
view to removing uncertainty and doubt regarding his claim and, as well, to providing a  
more complete factual portrait, which is required in a just and equitable legal debate on  
authorization.  
9
R.S.C. 1985, c. C-34.  
Without further specification or detail.  
CQLR, c. C-12.  
10  
11  
500-06-001004-197  
PAGE : 9  
[32] In his contestation of Petitioner-Respondents’ present applications, Applicant  
argues that no new elements are being raised resulting from his replacement of the  
prior applicant, which could conceivably give rise to a different result from what the  
Court decided in its prior judgments dated February 16 and September 7, 2021, in this  
matter.  
[33] He has again agreed, so as to avoid the necessity of pleading the various  
applications, to a discovery identical in terms as the Court had previously authorized,  
which Petitioner-Respondents have approvingly acknowledged but without them  
withdrawing their applications.  
[34] Moreover, Applicant Bourassa has also provided, amongst other exhibits, the  
following information regarding his medical situation:  
Exhibit P-51 (under seal): his admission and hospital records, from May 25 to  
June 2, 2017, for his in-patient treatment for severe Opioid Use Disorder at  
the Addiction Unit of Hôpital Saint-Luc, part of the CHUM;  
Exhibit P-52 (under seal): his admission and hospital records from March 13  
to March 17, 2018, once again for in-patient treatment at the Addiction Unit  
for severe Opioid Use Disorder;  
Annex 112: RAMQ Historique des services médicaux assurés, 1er novembre  
1981 au 24 novembre 1981 (23 pages);  
Annex 213 : RAMQ Historique des services assurés en pharmacie, 1er janvier  
1983 au 24 novembre 2021 (27 pages), without specific mention of any  
medications or drugs;  
Annex 314 : Déclaration de transport des usagers, Santé et Services sociaux  
Québec on November 27, 2005, as well as with the Rapport d’intervention  
préhospitalière du technicien ambulancier, of the same date, indicating that  
he had fallen from a roof to the ground in Saint-Lin, the transport destination  
being Hôpital Saint-Jérôme;  
12  
Letter of Fishman Flanz Meland Paquin, dated February 25, 2022, the annexes thereto being  
provided on a “strictly confidential” basis.  
Idem.  
Idem.  
13  
14  
500-06-001004-197  
PAGE : 10  
Annex 415 : Demande de prestations pour invalidité du Régime de rentes du  
Québec, with attached medical report signed by Dr. Jean-Pierre Martineau on  
November 16, 2020 and, as well, the Avis d’acceptation from Retraite  
Québec;  
Annex 516 : Liste d’émissions, said to be an extract from the pharmacy  
records of a Jean Coutu pharmacy in Sainte-Sophie, Quebec, for the period  
January 1, 2007 to November 28, 2021, along with a product information  
sheet for Teva-EMTEC 30, DIN 00608882, from the Drug Product Database  
of Health Canada;  
Annex 617 : Déclaration sous serment of Applicant Bourassa, signed  
January 24, 2022, containing a total of four numbered paragraphs, attesting  
that he was never prescribed and never consumed OxyContin or OxyNeo  
during the period covered by the prior class action relating to those two drugs,  
being from 1996 to 2017, or even after that period and, further, that he was  
not aware of that prior class action in 2021.  
[35] Applicant explains that he provided those additional documents in response to  
certain of the Petitioner-Respondents’ applications seeking medical or other records  
and, as well, the right to examine him, and this with a view to avoiding costs and delays,  
all of which is mentioned in his counsel’s letter of February 25, 2022. That benefit of  
course, has not come to pass.  
[36] Petitioner-Respondents are of the view that this additional information provided  
by Applicant has not responded to their requests and has actually created  
contradictions and more uncertainty. This they argue justifies the fact that they have not  
withdrawn their applications.  
[37] It is in that context that Applicant Bourassa argues abuse of procedure and  
claims his extrajudicial costs and disbursements.  
5. ANALYSIS  
[38] First and foremost, as regards the issue as to whether Applicant must establish a  
“defendable cause” against each respondent, that is an issue which certain respondents  
seem intent on raising at the authorization hearing.  
15  
Idem.  
Idem.  
Idem.  
16  
17  
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PAGE : 11  
[39] The argument is raised at this stage primarily as a justification for accessing all  
or part of Applicant’s pharmaceutical records.  
[40] In the Court’s view, and as stated above, this issue should not be decided at this  
preliminary stage. There are two reasons not to decide this issue, referred to by certain  
respondents as the “Marcotte issue”, at the pre-authorization phase.  
[41] Firstly, Applicant has identified the medication he has taken during the Class  
Period. The Court understands from reading his proceeding, and as confirmed by class  
counsel, that if he did not mention a medication as having been taken by him, then it  
was not. In the Court’s view, that should be sufficient at this stage.  
[42] Moreover, Applicant Bourassa has also filed an affidavit to confirm that he did not  
take two specific medications, and this in response to comments and inquiries made by  
certain Petitioner-Respondents. The Court will address this in more detail later.  
[43] Secondly, in the Court’s view, it is not in the interest of justice and its sound  
administration to decide the so-called Marcotte issue presently, in advance of the  
authorization hearing, and thereby unintentionally create the necessity for any of the  
parties to seek leave to appeal an authorization issue prior to the authorization hearing  
having actually been conducted.  
5.1. Abbott  
[44] Abbott pleads that Applicant’s position is contradictory and incomplete, creating  
additional doubt and uncertainty, and hence the need for clarification.  
[45] In view of the additional information provided by him, as mentioned above,  
Abbott has reduced its original request for medical and pharmaceutical records to “Mr.  
Bourassa’s complete medical records at the private clinic in Saint-Sauveur specialized  
in the treatment of pain mentioned at paragraph 2.216 of the Re-Amended Proceeding,  
from November 2005 to December 2009”.  
[46] Abbott continues to seek that particular information because it considers that it  
relates to an important contradiction involving essential core facts, which consequently  
requires further information so as to enable respondents to plead authorization on a fair  
and equal level.  
[47] Applicant alleges18 that he was injured as a result of a fall from a roof on  
November 27, 2005. He claims to have suffered multiple fractures to his left fibula and  
ankle and to have begun taking an opioid drug while hospitalized.  
18  
Re-Amended Application dated December 17, 2021 (“RAA”), para. 2.212 and 2.213.  
500-06-001004-197  
PAGE : 12  
[48] After being discharged from the hospital on November 28, 2005, Mr. Bourassa  
alleges that he “remained on prescription Dilaudid”19.  
[49] He further alleges that from 2006 until his admission in May 2017 to the CHUM,  
he was dispensed by pharmacies, on prescription, Dilaudid and Hydromorph Contin,  
and periodically in 2010 and 2013, immediate-release hydromorphone20.  
[50] It was during that same time frame, beginning in January 2006 and until  
mid-2017, that Mr. Bourassa was alleged to have been followed by a physician at a  
private clinic in Saint-Sauveur, specializing in the treatment of plain21. The records from  
that clinic are those which Abbott seeks to access.  
[51] The confusion to which Abbott refers pertains to the allegation that Applicant  
started using prescription opioids in 2005 whereas two documents provided by him  
appear to suggest it was in 2007, such that the Court can no longer take as proven his  
account of events. The documents in question, on which Abbott relies for arguing such  
confusion, are the following:  
1. Exhibit A-1:  
This document was provided by Applicant in March 2022 as part of Exhibit P-51.  
It is part of the CHUM’s admission records, dated May 25, 2017.  
The notes in the document appear to have been taken by an admissions  
professional.  
At the first page of Exhibit A-1, it is indicated that 9 years earlier, Mr. Bourassa  
had suffered an accident.  
Abbott argues that that note would place the accident in 2008, not in 2005 as  
alleged by Applicant.  
2. Exhibit A-2:  
This document is page 3 of 8 of the CHUM admission documents, also forming  
part of Exhibit P-51 provided by Applicant.  
In the section dealing with surgeries and other relevant prior events, the  
professional completing the form indicated that the fall from a roof happened in  
2008.  
19  
RAA, para. 2.214.  
RAA, para. 2.216-2.217.  
RAA, para. 2.215.  
20  
21  
500-06-001004-197  
3. Exhibit A-3:  
PAGE : 13  
This document is page 6 of 8 of the same 2017 CHUM admission document. In  
the section on pain, the reply to the question as to how long Applicant has had  
pain is 9 years. That too would refer to 2008.  
4. Exhibit A-4:  
At page 1 of 2, also part of the CHUM 2017 admission records filed by Applicant  
at Exhibit P-51, it is indicated that the patient is taking opioids since 8 years. That  
would translate to 2009.  
5. Annex 5 (Letter of attorney Mark Meland, February 25, 2022):  
At page 2 of 8, being the second page of a list of medications provided by a  
pharmacist affiliated with Jean Coutu, located in Sainte-Sophie, Applicant was  
given Dilaudid on September 3, 2007, and Hydromorph Contin on August 14,  
2007, not in 2005 as alleged.  
[52] These documents may possibly, as Abbott might argue at authorization, create  
certain confusion or even contradict Applicant’s allegations as to when he had his  
accident and started being prescribed opioids.  
[53] In the Court’s view, however, for the present purposes, the context of these  
documents is such that they do not give rise to a conclusion that they are essential and  
indispensable for the purposes of manifestly contradicting Applicant’s allegations.  
[54] In the same Exhibit P-51, at Bates page 011, in the section on medication, it  
indicates that Applicant has been using other opioids for a total of 12 years, which  
would translate back to 2005, as alleged by him.  
[55] At Exhibit P-52, also provided by Applicant in response to comments by certain  
respondents, at page 145, in the section on surgeries and other prior events, it refers to  
Applicant’s surgeries in 2005-2006.  
[56] In addition, Annex 3 provided by Applicant is the ambulance transportation form  
that confirms that on November 27, 2005, Applicant was transported from Saint-Lin,  
Quebec to the hospital in Saint-Jérôme as a result of his eight-meter fall to the ground  
from a roof on which he was working.  
[57] In such circumstances, the Court does not consider it essential and  
indispensable for authorization purposes to require Applicant to provide Abbott, or any  
of the other Petitioner-Respondents, with his complete medical records from the Saint-  
Sauveur pain-treatment clinic.  
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[58] The information on which Abbott and others rely in this regard is acquired at the  
time of admission into a specialized treatment program. Given that particular context,  
coupled with the fact that the documents do not originate with Applicant Bourassa and  
do not appear to have been reviewed or approved by him, that information may will be  
of limited utility at the authorization stage in the present matter.  
[59] As for the prescription filled in 2007 at the Sainte-Sophie pharmacy, that does  
not, in the Court’s view at this preliminary stage, constitute contradictory information of a  
nature that would prevent the Court from taking as established the allegation that  
Applicant began being prescribed opioids in 2005-2006. Information from that pharmacy  
does not exclude the possibility that other medication had been prescribed previously.  
And, as mentioned above, the ambulance transport report clearly shows when  
Applicant’s fall occurred, in 2005.  
[60] One should also keep in mind that whether the starting point is 2005, 2006, 2007  
or 2008, those years are all included in the proposed class period.  
[61] As well, Abbott does not provide a reasonable argument as to the importance of  
the difference in the starting point. If it is essentially a matter of credibility, that is not  
generally a matter to be determined at authorization.  
[62] In addition to the foregoing, Petitioner-Respondents all suggest that in  
medication liability cases, the Courts appear to always allow access to medical records  
at the authorization stage.  
[63] That is indeed often the case. That said, it is not entirely unusual for applicants  
seeking class action authorization in relation to the use of a medication to provide  
absolutely no critical information that may be found in his or her medical records.  
[64] Understandably, once a party puts his or her state of health at the heart of a  
class action claim, the absence of any supportive information, including documents,  
may be an important factor, as other judges have observed.  
[65] However, there is no rule applicable in class action authorization proceedings to  
the effect that access to medical records must always be given to a respondent. Each  
case is to be decided on its own merits, in the context of its particular circumstances.  
[66] In the present matter, Applicant Bourassa has voluntarily provided his medical  
records regarding his 2017 and 2018 admissions to a treatment clinic specialized in  
Opioid Use Disorder22, being in excess of 230 pages. Such disclosure is an important  
factor in the Court’s analysis of the request for medical records by Abbott and other  
Petitioner-Respondents.  
22  
Exhibits P-51 and P-52.  
500-06-001004-197  
PAGE : 15  
[67] As regards Abbott’s argument, shared by others, that fair play and the equity of  
the process support granting access to the documents, the Court does not consider that  
access to documents, including medical records, should be granted simply on the basis  
of equity. As stated above, the case law has set out the applicable criteria. Petitioner-  
Respondents need demonstrate that the information is essential and indispensable, as  
well as limited. If that criteria is not met, the principle of equity, absent a statutory  
provision, is insufficient to carry the ball over the goal line.  
[68] There is another issue that the Court considers it is useful to address. Abbott is  
seeking not only access to certain documents, but also the Court’s authorization to file  
same into the court file.  
[69] In this regard, the Court would not have authorized the filing of the totality of the  
document in question had access been granted, and this given that the Court has not  
yet taken cognizance of the documents. That analysis could be done subsequent to  
access, including at the outset of the authorization hearing.  
[70] The Court states the foregoing, keeping in mind the comments of Justice Mark  
Schrager of the Court of Appeal in E.L. c. Procureur général du Québec23, to the effect  
that the decision to authorize the production of documents at this stage cannot be done  
in the abstract, such that the judge must be provided the opportunity to assess the  
documents prior to rendering a decision.  
[71] For the foregoing reasons, Abbott’s application will be dismissed.  
5.2. Pharmascience and Teva  
[72] These two Petitioner-Respondents are also arguing, like Abbott, that Applicant’s  
own documents have created confusion, thereby requiring the need for clarification.  
[73] They seek to examine Applicant Bourassa on two topics, being:  
(a)  
when and how he was made aware of the alleged risks associated with  
any and all opioid products; and  
(b)  
whether he was aware of the alleged risks associated with opioids prior  
to the use of products manufactured by Teva Canada Limited or  
Pharmascience Inc.  
23  
2021 QCCA 782, para. 15.  
500-06-001004-197  
PAGE : 16  
[74] In addition, they seek access to the following documents, and this at least 10  
days prior to the proposed examination:  
(a)  
a complete copy of Applicant’s medical records for the period covered  
by the allegations of the Re-Amended Application, being 2005 to 2021;  
and  
(b)  
a complete copy of his pharmacy records for the same period covered  
by the allegations of the Re-Amended Application.  
[75] Subsidiarily, these Petitioner-Respondents seek limited document access,  
focusing on medical and pharmaceutical records that mention their products and, even  
more specifically, the prescription for the medication named Teva-Emtec 30, allegedly  
prescribed and dispensed to Applicant on April 2, 2008, along with all documents  
remitted to him with that prescription or medication.  
[76] As regards document access, they argue that the pharmacy records for the  
Sainte-Sophie Jean Coutu24, mentioned above, indicate that on April 2, 2008, Applicant  
Bourassa was dispensed Teva-Emtec, 300-30 mg, whereas the name “Emtec” for the  
molecule in question only started being used in 2017, not back in 2008 as shown in the  
pharmacy record.  
[77] With all due respect, that argument as a reason to access all of Applicant’s  
medical and pharmaceutical records is without merit.  
[78] Firstly, Teva is not saying that the specific molecule did not exist before 2017,  
but rather only that the molecule in 2008 was marketed under a different name.  
[79] Secondly, it is not Applicant Bourassa who selected the product name used by  
the Sainte-Sophie Jean Coutu pharmacy in its list of medications filed as Annex 5. It is  
the pharmacy or the RAMQ.  
[80] Thirdly, the fact that Applicant uses in his proceeding25 that same brand name for  
what the Sainte-Sophie pharmacy dispensed to him on April 2, 2008, does not  
constitute, contrary to what respondents argue, evidence that he has lied or his  
allegation is false, thereby justifying access to records. It is entirely possible that the  
pharmacy list, generated on November 29, 202126, would refer to the then-existing  
brand name for a given molecule and its DIN number rather than its name years earlier  
when dispensed. Using the current name of that same molecule does not constitute a  
key to the vault to which respondents would otherwise not have access.  
24  
Annex 5 (page 1) to the February 25, 2022 letter of Plaintiff’s counsel.  
RAA, para. 2.219 (ii).  
The date and time are indicated at the upper right hand corner of each page.  
25  
26  
500-06-001004-197  
PAGE : 17  
[81] Petitioner-Respondents go further, arguing that this name issue could be seen as  
tainting all of Applicant’s allegations of fact. That argument is, to say the least,  
unconvincing.  
[82] Insofar as the other arguments raised by these two Petitioner-Respondents in  
their application, they too are unconvincing and have, for the most part, been addressed  
in the portion hereof dealing with the Abbott application.  
[83] In the Court’s view, Pharmascience and Teva have not satisfied their burden of  
demonstration to justify the document access they seek. They have not made the case,  
at this stage, that the information and documents are essential, indispensable and  
limited.  
[84] As regards their proposed examination of Applicant, the Court will allow it, just as  
it did for the previous applicant in this matter and this as it pertains to the issue of when  
and how he was made aware of risks associated with the use of any or all opioid  
products. The Court will also allow the authorized Petitioner-Respondents to ask  
whether such knowledge was acquired prior to his starting to use their opioid products,  
but without Applicant being required to provide documentary proof as when he started  
such use, the Court having already decided as to the issue of access to his  
pharmaceutical and medical records.  
[85] The said examination is to be conducted before the Court at the authorization  
hearing, for a maximum duration of 1.5 hours, to be shared, either equally or by  
agreement, by all the Petitioner-Respondents who are authorized herein by the Court.  
[86] In the Court’s view, however, the present Petitioner-Respondents have not  
satisfied their burden of demonstrating that any additional information or documents are  
essential or indispensable for the authorization hearing.  
5.3. Pro Doc  
[87] Pro Doc also seeks access to documents27, as well as the authorization to  
conduct an examination of Applicant.  
[88] 5.3 (a): As regards access to documents, Pro Doc seeks to receive the  
following28:  
27  
During the hearing, Pro Doc withdrew its conclusion D (iii) as regards access to certain documents,  
although it continues to seek access to others.  
It should be noted that Pro Doc is not seeking authorization to file anything at this stage, and reserves  
28  
its rights to seek such authorization later.  
500-06-001004-197  
PAGE : 18  
(i) all the medical files of Applicant Bourassa regarding his treatment  
at the private clinic in Saint-Sauveur, as alleged at paragraph  
2.215 of his Re-Reamended Application;  
(ii) the prescription he was given for Procet-30, and all other  
documents given to him concerning Procet-30.  
[89] Insofar as the medical records from the Saint-Sauveur clinic are concerned,  
these were also requested by Abbott. For the same reasons expressed above, the  
Court will not authorize access thereto.  
[90] Pro Doc raises the issue that Applicant purportedly suffered from neck cancer. It  
says that it learned this by means of a transcript from a Quebec Court, Small Claims  
Court hearing in 2014, in the District of Terrebonne, during which Applicant testified as a  
roofing expert and informed the Court that in 2012, he had not renewed his Régie du  
bâtiment licence as a roofing contractor because he had neck cancer.  
[91] Moreover, Pro Doc argues that Mr. Bourassa filed for bankruptcy in 2014, and  
this given that his roofing business had failed and that he had insufficient revenue to  
pay his debts, all unrelated to his fall.  
[92] By way of its subsequent re-amended application, dated March 11, 2022, Pro  
Doc seeks to file the said transcript as exhibit RL-29 and Applicant’s bankruptcy file as  
exhibit RL-30. Pro Doc also seeks to file related judgments and court records as exhibit  
RL-28.  
[93] According to Pro Doc, this information is integral to Applicant’s case as to  
causality, in that it contradicts his allegation that he ceased working due to the pain  
resulting from his fall.  
[94] What exactly has Applicant actually alleged in this regard?  
[95] At paragraphs 2.237 and 2.238 of his Re-Amended Application, he alleges the  
following:  
2.237 Although he was able to work intermittently after a lengthy recovery from  
his accident in November 2005, he ultimately was unable to continue  
working due to his OUD (Opioid Use Disorder).  
2.238 In November 2020, Mr. Bourassa applied for disability benefits under the  
Quebec Pension Plan, which application was supported by his family  
doctor, as he did not believe that Mr. Bourassa would ever be able to  
work again.  
500-06-001004-197  
PAGE : 19  
[96] In the Court’s view, any statement that in 2012, Applicant did not renew his  
contractor licence due to neck cancer, would not reasonably on its face manifestly  
contradict a much broader statement that he was ultimately unable to work due to  
Opioid Use Disorder.  
[97] This issue of causality would be one, amongst others, that would need be  
determined in the post-authorization phase when more detailed proof would become  
available should the class action ultimately be authorized.  
[98] Moreover, the fact that Applicant has not mentioned that he had neck cancer is  
not, per se, a reason for the Court to authorize Pro Doc to access his medical records.  
[99] In the Court’s view, Applicant has no obligation for the purposes of authorization,  
to mention every medical condition he has ever encountered.  
[100] In addition, from the perspective of proportionality, one should keep in mind that  
Applicant has only referred to one prescription of one medication with respect to Pro  
Doc, and this in relation to dental surgery. In the Court’s view, this does not speak  
favourably to Pro Doc’s application to access all medical records from the  
Saint-Sauveur clinic.  
[101] Counsel for Pro Doc reminded the Court that due to investigative efforts on the  
part of certain respondents, including his client, they have been able to remove prior  
applicants from the action. They are looking to see whether that can and should be  
done with the current Applicant, who has only been involved in that role for a few  
months now.  
[102] The Court’s role is certainly not to promote removing applicants seeking to  
institute class actions, thereby blocking the advancement of a proposed class action.  
Appellate courts have often reminded class-action authorization judges that the  
objective is not to find the “perfect” applicant/class representative.  
[103] The Court concludes that Pro Doc has not demonstrated that accessing the  
medical records in this case is essential, indispensable and limited, at least not at the  
authorization stage.  
[104] In this regard, it would require, at the least, a mini-trial to enable the Court to  
make the factual distinctions argued by Pro Doc as to what contribution neck cancer  
may have actually had on Mr. Bourassa’s decision to cease working versus simply not  
renewing a licence, and whether that outweighed the impact of other pain and Opioid  
Use Disorder on his inability to work. That issue, if relevant at all, would best be left to a  
post-authorization stage, if that is ever to be the case, where the judge will benefit from  
more detailed proof.  
500-06-001004-197  
PAGE : 20  
[105] As stated above, one cause of pain would not necessarily “manifestly” contradict  
another.  
[106] Moreover, it is worth repeating that this is not a case where an applicant has  
provided no specifics or supporting documents. Applicant Bourassa has provided both,  
including his medical records relating to his treatments for Opioid Use Disorder.  
[107] 5.3 (b): As regard the prescription for Procet-30, Applicant states29 that on  
April 17, 2015, he was dispensed, as mentioned above, Procet-30, a Pro Doc drug and  
this for pain related to a dental procedure.  
[108] Pro Doc argues that this singular reference to Procet-30 raises questions  
because there is no specific allegation of causality, and it is not clear that one  
prescription would create Opioid Use Disorder.  
[109] As well, Pro Doc argues that it is unclear why, after 11 years on primarily two  
opioid drugs, Applicant Bourassa decided to seek treatment for Opioid Use Disorder.  
[110] In the Court’s view, none of these arguments justify Pro Doc’s access to  
additional documents. There is no reasonable explanation given as to why accessing  
those documents would be essential and indispensable for the purposes of  
authorization.  
[111] At this stage, there is no reason to conclude that Applicant’s allegation in this  
regard should not be taken as true, and the Court does not intend to conduct a trial  
within a trial in this regard.  
[112] In the Court’s view, there is no rule requiring a class-action applicant to file every  
document he or she may possess, including prescriptions, at the authorization stage.  
Each case is to be assessed on its own facts and context.  
[113] 5.3 (c): As mentioned, Pro Doc is also seeking authorization to examine  
Applicant. It requests a two-hour examination on the following issues:  
(i) when and how Mr. Bourassa acquired knowledge of the risks  
associated with analgesic opioids;  
(ii) his specific complaints as regards Pro Doc in relation to Procet-  
30, which he would have consumed on or about April 17, 2015;  
29  
Re-Amended Application, para. 2.219 (iv).  
500-06-001004-197  
PAGE : 21  
(iii) his work history in the field of roofing since 2005 and the reasons  
for having stopped working; and  
(iv) his medical history and the treatments he underwent in relation to  
neck cancer.  
[114] Of these, the only issue that the Court considers appropriate at this stage, and  
this given the Court’s above mentioned comments in relation to Applicant’s work and  
medical history, relates to Applicant having acquired knowledge of the risks associated  
with analgesic opioids. As stated above, the Court authorized same in relation to the  
prior applicant. The present applicant does not object.  
[115] Accordingly, the Court will authorize an examination by Pro Doc of Applicant  
Bourassa in relation to the same issues authorized for Abbott, and this as per the terms  
and conditions hereinafter stated.  
[116] 5.3 (d): Pro Doc seeks to have the Court reserve its rights to later seek  
permission to file documents.  
[117] The Court understands that Pro Doc does not want to be seen to renounce to  
such right, but an order by the Court to “reserve” such right is of no value. Either Pro  
Doc has a right or it does not, and the Court need not intervene in matters of this nature  
in order to either preserve or resurrect a right; presently, it is an academic issue.  
5.4. Purdue  
[118] Both Purdue entities had sought to access Applicant’s pharmaceutical records  
and to reserve the right to conduct an examination of him regarding whether he was  
ever prescribed and used OxyContin and OxyNeo between 1996 and 2017. They also  
wanted to know whether he was previously aware of another opioid class action  
involving those two medications.  
[119] In order to provide Purdue more certainty, Mr. Bourassa signed an affidavit dated  
February 24, 2022, stating that he was never prescribed and never used OxyContin or  
OxyNeo between 1996 and 2017. He further stated therein that he had no knowledge of  
that parallel class action prior to his involvement in the present class-action  
proceedings.  
[120] After having made its representations, and after the Court had taken the matter  
under reserve, Purdue’s counsel, by email dated May 4, 2022, informed the Court that  
their clients were withdrawing their application to obtain Applicant’s pharmaceutical  
records, as well as to reserve the right to conduct an examination of him.  
500-06-001004-197  
PAGE : 22  
[121] Accordingly, the Court will not analyse the representations made as regards  
same.  
5.5. Abuse of Procedure  
[122] In the Court’s view, Applicant has failed to demonstrate an abuse of procedure  
on the part of Petitioner-Respondents.  
[123] Firstly, having replaced the prior applicant in December 2021, Mr. Bourassa  
exposed himself to being the subject of applications relating to his documents and his  
examinations insofar as his personal claim is concerned. It is not abusive for Petitioner-  
Respondents to exercise such rights in his regard. In the Court’s view, this is not a  
question of res judicata since Mr. Bourassa has an entirely separate personal claim  
than his predecessor.  
[124] Secondly, the agreement between the parties at the time class counsel sought to  
change the applicant in December 2021 clearly envisaged that such applications by  
respondents might be presented. It would be an affront to that agreement on which the  
Court relied to approve the change of applicant, to now qualify those applications as  
abusive.  
[125] Applicant‘s position in this regard is not well-founded and is to be dismissed.  
FOR THESE REASONS, THE COURT:  
GRANTS in part the applications of Pharmascience Inc., Teva Canada Limited  
and Pro Doc Ltée to examine Applicant;  
ORDERS the examination of Applicant Jean-François Bourassa by counsel for  
Pharmascience Inc. and Teva Canada Limited and for Pro Doc Ltée to be  
conducted in court before the authorization judge, on the same day as and  
immediately preceding the authorization hearing, for a combined total duration of  
one and one-half (11/2) hours, with that time to be shared equally between them  
or as per their agreement, which said examination is to be limited to the issues of  
when and how Applicant was made aware of risks associated with any or all  
opioid products and, as well, whether such knowledge was acquired prior to his  
starting to use those particular respondentsopioid products, without Applicant  
being obliged to provide documents in that regard;  
DISMISSES all the remaining applications as to all other issues;  
500-06-001004-197  
PAGE : 23  
DISMISSES Applicant’s application in abuse of procedure;  
THE WHOLE with judicial costs to follow in accordance with the authorization  
judgment to be rendered in this matter.  
__________________________________  
Gary D.D. Morrison, J.S.C.  
Attorneys for Applicant:  
Mtre. Mark E. Meland  
Mtre. Margo R. Siminovitch  
Mtre. Betlehem Endale  
FISHMAN FLANZ MELAND PAQUIN  
Mtre. André Lespérance  
Mtre. Marianne Dagenais-Lespérance  
Mtre. Gabrielle Gagné  
TRUDEL JOHNSTON & LESPÉRANCE  
Attorneys for Respondents:  
Mtre. Michel Gagné  
Mtre. Samuel Lepage  
McCARTHY TÉTRAULT  
For Abbott Laboratories Ltd.  
Mtre. Jean-Michel Boudreau  
IMK  
Mtre. Melanie Ouanounou  
GOODMANS LLP  
For Apotex Inc.  
Mtre. Camille Pichette  
AUDREN ROLLAND  
For Aralez Pharmaceuticals Canada Inc.  
500-06-001004-197  
PAGE : 24  
Mtre. Gabrielle Lachance Touchette  
McMILLAN  
For BGP Pharma ULC and Mylan Pharmaceuticals ULC  
Mtre. Tania Da Silva  
Mtre. Petar Stoyanov  
DLA PIPER (CANADA)  
For Bristol-Myers Squibb Canada Co.  
Mtre. Myriam Brixi  
LAVERY DE BILLY  
For Church & Dwight Canada Corp.  
Mtre. Éric Préfontaine  
Mtre. Jessica Harding  
OSLER, HOSKIN & RANCOURT  
For Cobalt Pharmaceuticals Inc., Joddes Limited, Pharmascience Inc., Sun Pharma  
Canada Inc. and Teva Canada Limited  
Mtre. Jonathan M. Jenkins  
WOODS  
For Ethypharm Inc.  
Mtre. Guy Poitras  
GOWLING WLG  
For GlaxoSmithKline Inc.  
Mtre. Robert J. Torralbo  
BLAKE, CASSELS & GRAYDON  
For Janssen Inc.  
Mtre. Cédric-Anthony Gohier  
FERNET AVOCATS INC.  
For Laboratoire Atlas Inc., Laboratoire Riva Inc. and Laboratoire Trianon Inc.  
Mtre. Kristian Brabander  
Mtre. Gabrielle Baracat  
Mtre. Amanda Gravel  
McCARTHY TÉTRAULT  
For Paladin Labs Inc.  
500-06-001004-197  
PAGE : 25  
Mtre. Marie-Ève Gingras  
TORYS LAW FIRM LLP  
For Pfizer Canada ULC  
Mtre. Fadi Amine  
MILLER THOMSON  
For Pro Doc Ltée  
Mtre. Anne Merminod  
BORDEN LADNER GERVAIS  
For Purdue Frederick Inc. and Purdue Pharma  
Mtre. Doug MitchellI  
IMK  
For Boehringer Ingelheim (Canada) Ltd. and Roxane Laboratories Inc.  
Mtre. Noah Boudreau  
Mtre. Peter J. Pliszka  
Mtre. Mirna Kaddis  
FASKEN MARTINEAU DuMOULIN  
For Novartis Pharmaceuticals Canada Inc. and Sandoz Canada Inc.  
Mtre. Sylvie Rodrigue  
Mtre. Corina Manole  
TORYS LAW FIRM LLP  
For Sanofi-Aventis Canada Inc.  
Mtre. Francis Rouleau  
BLAKE, CASSELS, GRAYDON  
For Valeant Canada Limited, Valeant Canada LP and 4490142 Canada Inc. (fka Meda  
Valeant Pharma Canada Inc.)  
Date of Hearing : March 21, 2022  



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