Class Action vs. PFIZER Inc., certified by the BC Supreme Court
Class action against Pfizer’s oral contraceptive pills, Aleese 21 and 28, ceritifed.
In the recent decision of MacKinnon v Pfizer Canada Inc., 2021 BCSC 1093, the BC Supreme Court has certified a class action lawsuit against Pfizer Canada Incorporated. Now, this does not mean that Pfizer has done anything wrong. However, the BC Supreme Court simply considers the question whether, assuming the facts pleaded are true, it is plain and obvious that the plaintiff’s claim has no reasonable prospect of success. In lay terms, if there is a possibility of success, the Court will certify the action.
NOTE: This claim has nothing to do with Pfizer’s COVID-19 Vaccine which, as reported by WHO, is perfectly safe.
Instead, this claim stems from a Canada Health Advisory warning of the following:
Broken or smaller-than-normal birth control pills may deliver a smaller dose of the active drug ingredient, which could reduce its effectiveness in preventing pregnancy.
Health Canada has recently communicated about instances of quality concerns involving Alesse and Alysena birth control pills (see links below). Health Canada continues to receive complaints of quality issues and is reminding women to always check their pills before taking them.
This communication is prompted by two recent complaints involving Alesse 28. In one complaint, two active pills were missing from their slots and a third slot in the blister package contained a pill fragment where a whole pill should have been (see image below). In the second complaint, a pill shifted from one slot to another, causing two pills to be found in one slot and a second slot to have no pill in it (see image below).
It should be noted that this claim has nothing to do with Pfizer’s COVID-19 vaccine which, as reported by the WHO, is perfect safe.
As a result of the above-noted issues, family physicians were advised to report the warnings to anyone prescribed the contraceptive. As a result of Pfizer’s alleged negligence, two individuals reported testing positive for pregnancies. As Madam Justice Horsman stated in her reasons for judgment:
The plaintiff Taylor MacKinnon
[15] The plaintiff Taylor MacKinnon deposes that she has been taking Alesse 21 as an oral contraceptive since January 2014. She says she has always taken Alesse as directed in the manufacturer’s instructions. Ms. McKinnon was taking Alesse to prevent pregnancy.
[16] Ms. MacKinnon says that on or about December 6, 2017, she was notified by her pharmacist that Alesse was the subject of a Health Canada advisory. She was advised to check her remaining pills for any abnormalities. At the time, Ms. MacKinnon was taking Alesse 21 pills from a package she had purchased on October 22, 2017. The package is not from one of the Advisory Lots.
[17] On or about December 16, 2017, Ms. McKinnon received a positive result on a pregnancy test. She visited her family doctor on December 17, 2017, and was told that she was just over five weeks pregnant. Ms. McKinnon says she subsequently telephoned Health Canada, as directed on the Health Canada website for “adverse reactions”, and left her name and phone number, along with a brief description of her situation. This call was not returned. Ms. McKinnon says she also telephoned Pfizer and spoke with an agent from the Product Side Effects department. She was not provided with any further information from Pfizer.
[18] Ms. McKinnon gave birth to a daughter on August 4, 2018. She was 24 years old at the time. Ms. McKinnon says she wished to have children someday but not at such a young age. She would have preferred that she and her partner were more established in their careers and financially stable before having children. The plaintiff says she has not been able to find work as a certified dental assistant following the birth of her daughter.
The plaintiff Alysa McIntosh
[19] The plaintiff Alyssa McIntosh deposes that she has been taking Alesse 21 since January 2017 for the purpose of preventing pregnancy. She says she has always taken Alesse 21 as directed in the manufacturer’s instructions.
[20] On or about October 31, 2017, Ms. McIntosh discovered she was pregnant. In or around late November or early December 2017, she suffered a miscarriage. The gestational age of the foetus at the time of the miscarriage was between eight and nine weeks.
[21] The plaintiff purchased the Alesse 21 package that she was taking at the time of her pregnancy on or about June 23, 2017. The package came from a lot that is one of the Advisory Lots.
In order for the Court to certify this action as a Class Action, the two plaintiff’s (and potential others) were required to do as follows:
THE CERTIFICATION REQUIREMENTS
[41] The CPA sets out the procedure by which a member of a class may commence and maintain an action on behalf of all members of a class. Pursuant to s. 2 of the CPA, the person wishing to represent a class of persons must bring an application for an order certifying the action as a class proceeding and appointing the applicant as the representative plaintiff.
[42] A class action has three principal advantages over the pursuit of individual claims through a multiplicity of suits. First, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, class actions promote access to justice by making economical the prosecution of claims that would be prohibitively costly for any individual class member. Third, class actions ensure that actual and potential wrongdoers modify their behaviour to take full account of the harm they have caused, or may cause, to the public: Hollick v. Toronto (City), 2001 SCC 68 at para. 15 [Hollick].
[43] In order to have an action certified as a class proceeding in British Columbia, the proposed representative plaintiff must meet the criteria set out in s. 4(1) of the CPA. Section 4(1) requires the court to certify a proceeding as a class proceeding if all of the following requirements are met:
(a) the pleadings disclose a cause of action;
(b) there is an identifiable class of 2 or more persons;
(c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members;
(d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;
(e) there is a representative plaintiff who
(i) would fairly and adequately represent the interests of the class,
(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and
(iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members.
[44] The requirement in s. 4(1)(a) that the pleadings disclose a cause of action is assessed on the same test applicable on a motion to strike pleadings under R. 9‑5(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [SCCR]. The question is whether, assuming the facts pleaded are true, it is plain and obvious that the plaintiff’s claim has no reasonable prospect of success: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 63 [Microsoft].
[45] In relation to the remaining criteria in s. 4(b)-(e), the plaintiff must show “some basis in fact” that the requirements for certification are met: Hollick at para. 25. This does not involve an assessment of the merits. The question is not whether there is some basis in fact for the claim itself, but rather whether there is some basis in fact to establish each of the individual requirements for certification. The certification stage is not concerned with the merits of the action but rather with its form and whether the action can properly proceed as a class action: Hollick at paras. 16 and 25; Microsoft at paras. 99-105.
Madam Justice Horsman, in conclusion, certified the action as a multi-jurisdictional class proceeding stating:
[172] In summary, I make the following orders:
a) This action is certified as a multi-jurisdictional class proceeding pursuant to the CPA;
b) The class is defined as all persons resident in Canada who were prescribed Alesse 21 or Alesse 28 (collectively, “Alesse”) and ingested said medications between January 1, 2017 and April 30, 2019;
c) The plaintiffs’ proposed common issues in Appendix A to this judgment are all certified, with the exception of issue (i);
d) The plaintiffs’ application to certify common issue (i) is adjourned to permit the parties an opportunity to provide additional submissions on the certification of common issues relating to the legislation listed in para. 37b of the Second Amended NOCC;
e) The plaintiffs have leave to amend the Second Amended NOCC, as necessary, in order to further particularize the causes of action advanced under the legislation listed in para. 37b of the Second Amended NOCC;
f) The parties shall, within 30 days of the date of this judgment, take steps to schedule a further appearance before me in order to settle the terms and manner of notice under the CPA.