Bourassa c. Abbott Laboratories Ltd

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)

_____________________________________________________________________

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PAGE : 2

[1]

Six¹of 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.

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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 Court’s 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.

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 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;

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 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

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[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

étroit”⁶, 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

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[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

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[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 Quebec¹⁰and 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

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[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, 1^ernovembre

1981 au 24 novembre 1981 (23 pages);

 Annex 2¹³: RAMQ Historique des services assurés en pharmacie, 1^erjanvier

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.

13

14

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 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.

16

17

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[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 alleges¹⁸that 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.

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[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

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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.

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[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.

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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 proceeding²⁵that 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

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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.

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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.

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[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.

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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 states²⁹that 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).

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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.

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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 respondents’ opioid products, without Applicant

being obliged to provide documents in that regard;

DISMISSES all the remaining applications as to all other issues;

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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