ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 05-CV-284720CP DATE: 2021/02/09
BETWEEN:
AIMEE LYN PATKUS Plaintiff
- and -
HOFFMAN-LA ROCHE LIMITED HOFFMAN-LA ROCHE LIMITEE, F. HOFFMAN-LA ROCHE, LTD. AG., ROCHE HOLDING LTD. and HOFFMAN-LA ROCHE INC. Defendants
Won J. Kim and Megan B. McPhee, putative Class Counsel.
Proceeding under the Class Proceedings Act, 1992
HEARD: In Writing
PERELL, J.
REASONS FOR DECISION
[1] On February 4, 2005, Aimee Lyn Patkus, an Ontario resident, commenced this proposed class action against the defendant manufacturers of the prescription acne medication, isotretinoin, branded Accutane. In her claim, Ms. Patkus alleged that after using Accutane, she suffered from Inflammatory Bowel Disease (IBD) and various other gastrointestinal ailments.
[2] At the time that Ms. Patkus’s claim was issued and up until 2011, Ms. Patkus was represented by Michael R. Dunn of Dunn & Company.
[3] In or around August 2011, Kim Spencer McPhee Barristers P.C. (then Kim Orr Barristers P.C.) agreed to assume carriage of Ms. Patkus’ proposed class action in association with the lead counsel of a National Accutane Consortium of parallel class proceedings that were proceeding in several provinces.
[4] However, after Kim Spencer McPhee Barristers P.C. assumed carriage of the action in Ontario, Ms. Patkus decided to withdraw as representative plaintiff and pursue an individual action instead. She retained different counsel.
[5] With the withdrawal of Ms. Patkus, Kim Spencer McPhee Barristers P.C. contacted several putative class members and identified two potential replacement representative plaintiffs. These individuals, Andy Scott and Janet MacPhee, signed retainers, and they were prepared to step in and act as representative plaintiffs.
[6] However, before a joinder motion could be brought, new epidemiological studies suggested that there might not be a causal link between Accutane and IBD. At the same time, in the U.S., numerous actions about isotretinoin were dismissed for unreliable expert evidence.
[7] On June 27, 2013, the Quebec Superior Court denied an application to authorize a national class proceeding on behalf of all Canadians who had consumed Accutane and suffered from IBD, citing a lack of evidence to establish a causal relationship between Accutane and the plaintiff’s Crohn’s disease.
[8] In Canada, the 19 individual actions launched in respect of alleged Accutane injuries have been dismissed or discontinued, including the individual action commenced by Ms. Patkus.
[9] Of eleven proposed class actions commenced in Canada in respect of Accutane, with one exception, the actions are either dormant or discontinued without having reached the certification stage.
[10] In May 2020, the Supreme Court of New Jersey denied the American plaintiffs’ requests for further review of the dismissal of 3,000 cases, thus ending all pending Accutane litigation with respect to IBD in the U.S.
[11] The only active class action in Canada is a proposed national class action commenced in Saskatchewan by the Merchant Law Group, (Graham v. Hoffmann-La Roche Ltd.). That action had a certification hearing held before Justice Mills of the Court of Queen’s Bench for Saskatchewan in January 2020. Justice Mills’ decision is pending.
[12] To date, Accutane remains on the Canadian market and has never been recalled.
[13] It appears that the scientific community has now reached a consensus that there is no causal link between the active ingredient in Accutane, isotretinoin, and IBD.
[14] In the absence of scientific evidence needed to support a claim in this action, and as reflected in the outcome of other Accutane litigation in Canada and the United States, there is no longer a viable path forward for this action.
[15] Notice of the dismissal of the action in Ontario can be adequately given by way of updating the existing Accutane webpage of putative Class Counsel; and emailing those few putative class members who have contacted Class Counsel in the past five years to inquire about the action.
[16] The defendants consent to a dismissal of this action without costs.
[17] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, dismissal or settlement of a class action. Section 29 states:
Discontinuance, abandonment and settlement
- (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding; and
(c) a description of any plan for distributing settlement funds.
[18] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose; whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced; or whether the defendant will be prejudiced.[^1]
[19] In the immediate case, no purpose would be served by refusing to approve the proposed dismissal without costs of the action. There is no representative plaintiff. The chance of success is apparently negligible. The action was quite vulnerable to being dismissed for delay for want of prosecution. I, therefore, grant the requested order dismissing the action as requested.
Perell, J.
Released: February 9, 2021
COURT FILE NO.: Court File No. 05-CV-284720CP DATE: 2021/02/09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
AIMEE LYN PATKUS Plaintiff
- and -
HOFFMAN-LA ROCHE LIMITED HOFFMAN-LA ROCHE LIMITEE, F. HOFFMAN-LA ROCHE, LTD. AG., ROCHE HOLDING LTD. and HOFFMAN-LA ROCHE INC. Defendants
REASONS FOR DECISION
PERELL J.
Released: February 9, 2021
[^1]: Logan v. Canada (Minister of Health), [2003] O.J. No. 418 (S.C.J.), aff’d (2004), 2004 CanLII 184 (ON CA), 71 O.R. (3d) 451 (C.A.).