On March 5, 2019, the Court of Appeal granted a request by the defendant pharmacies for leave to appeal from the decision by the Superior Court in the matter of Pharmacie Tania Kanou (Jean Coutu) v. Côté (french only), which authorized the filing of a class action against them.
In the class action, the Applicant alleged that the defendant pharmacy owners, operating under various banners, had engaged in certain over-billing practices and had also failed to disclose the details of their fees to their patients in Québec. According to the Applicant, the defendants billed patients with private health insurance for professional fees and charges that were disproportionate, unreasonable and inequitable compared to those fees billed to patients benefiting from public healthcare drug coverage.
Although leave to appeal from a judgment granting the authorization of a class action is rarely granted in Québec, as a result of the strict test laid out by the Court of Appeal in Centrale des syndicats du Québec v. Allen,(the “Allen Decision”), Justice Marie-Josée Hogue was persuaded by the appellant pharmacies’ arguments that the first-instance judgment contained an apparent error in the interpretation of the criteria for the authorization of a class action.
Addressing the grounds for appeal, Justice Hogue notes that while the first-instance judge conceded that the evidence presented at the authorization stage did not demonstrate that the plaintiff had paid more for his prescriptions than patients under the public healthcare system, she nonetheless authorized the class action on the basis of statistical evidence showing that, on average, patients with private health insurance reportedly paid more for their prescriptions. As the Appellants plead, [translation:] “having no personal remedy against any of the petitioners, particularly given the absence of fault on their part and the absence of injury, the Judge could not conclude that an arguable cause of action existed within the meaning of Section 575 (2) CCP, nor could the respondent be an adequate representative."
Justice Hogue also agreed with the second argument presented by the appellant pharmacies that the class action proposed by the respondent constitutes a collateral attack on the legislative system in Québec, which expressly allows Québec pharmacists to charge different fees to patients covered by private insurance plans.
Acknowledging that the first-instance judgment was affected by an apparent error, Justice Hogue determined that the strict test established by the Court of Appeal in Allen Decision was met and granted the request for leave to appeal. The ruling of the Court of Appeal on the merits will no doubt provide further clarification regarding the requirement that a plainitff requesting leave to bring a class action must demonstrate prima facie the he has a personal cause of action that is valid. This is a case to follow closely in the coming months.
 2016 QCCA 1878.
 Ruling, para. 8.