Executive Summary: Key Legal and Evidentiary Issues

• Scope of amendments to a proposed consumer class action alleging false and misleading representations about the effectiveness of over-the-counter cold medicines containing phenylephrine.
• Question of whether a new civil conspiracy cause of action, based on alleged coordinated conduct in the United States to mislead regulators and the public, is sufficiently linked to the original Québec consumer misrepresentation claims.
• Debate over the relevance and proportionality of adding extensive allegations about a US-based Task Group, scientific studies, and FDA-related conduct at the pre-authorization stage.
• Controversy as to whether Québec law recognizes a stand-alone “civil conspiracy” claim outside of price-fixing scenarios addressed in the federal Competition Act, and whether this can be vetted at the amendment stage rather than at authorization.
• Challenge to the joinder of several US corporate affiliates (including Procter & Gamble US) and whether there are sufficient factual allegations tying them to the Québec market and the impugned products.
• Application of Québec class action and civil procedure principles that strongly favor allowing amendments before authorization, provided they are pertinent to the article 575 C.p.c. criteria and do not unduly prejudice case management.

Background and parties

This case arises from a proposed class action in the Québec Superior Court, Class Actions Chamber, brought by Andrew Kraska on behalf of Québec consumers who purchased certain over-the-counter cold and flu medications containing phenylephrine (the “Cold Medicines”). The primary Canadian defendants are Kenvue Canada Inc. (formerly Johnson & Johnson Inc.), Procter & Gamble Inc., Haleon Canada ULC (formerly GSK Consumer Health Care ULC), and RB Health (Canada) Inc. The action is at the pre-authorization stage, where the plaintiff must first obtain authorization (certification) to proceed as a class action, and any changes to the authorization application require leave of the Court.

Facts regarding the proposed class action

The original authorization application was filed on 14 September 2023. It alleges that Québec consumers were targeted with false and misleading representations about the performance and effectiveness of the Cold Medicines, all of which contain phenylephrine as the active decongestant ingredient. According to the plaintiff, the defendants represented that these products relieved nasal congestion, even though they allegedly had no meaningful effect because they contained little or no effective phenylephrine when taken orally. The proposed class consists of all persons in Québec who purchased any of the listed Cold Medicines between 1 February 2007 and the date the case is authorized as a class action, as set out in an annexed “Schedule A – List of Cold Medicine Products Containing Phenylephrine.” The timing of the action is closely connected to a 12 September 2023 Briefing Document issued by the US Food and Drug Administration (FDA), which is said to have concluded that orally administered phenylephrine is not effective for relieving nasal congestion. This FDA development is central to the plaintiff’s theory that consumers paid for products that did not work as advertised.

Development of the litigation and proposed amendments

Following the filing of the original authorization application, the defendants submitted motions for appropriate evidence, which the plaintiff contested. A hearing scheduled for December 2024 was adjourned when the plaintiff indicated an intention to amend his pleading, and the parties then entered into discussions. On 1 August 2025, the plaintiff formally filed an application for permission to amend the Application for Authorization to Institute a Class Action. This amendment package included a proposed Amended Application (dated 25 July 2025) and a new book of exhibits. The plaintiff sought several categories of changes. First, he aimed to add Pfizer Canada ULC as a defendant, together with its US affiliate, Pfizer Inc. Second, he proposed the addition of several US-based corporate affiliates of the existing Canadian defendants: Johnson & Johnson Consumer Inc. and Kenvue Inc. (related to Kenvue Canada); The Procter & Gamble Company (related to Procter & Gamble Canada); and RB Health (US) LLC (related to RB Health Canada). Third, the plaintiff wished to introduce a new cause of action grounded in a theory of civil conspiracy, supported by extensive new factual allegations and exhibits. In addition, the amendments elaborated on the plaintiff’s personal situation, reformulated the proposed common questions, and expanded the Schedule A product list to cover additional Cold Medicines containing phenylephrine.

Allegations about the Task Group and civil conspiracy

The heart of the new conspiracy theory lies in allegations about a “Task Group” formed in the United States to monitor scientific developments concerning the effectiveness of orally administered phenylephrine. Four of the new US defendants—Kenvue US, Procter & Gamble US, RB Health US, and Pfizer US—are alleged to have been members of this Task Group. The plaintiff pleads that this Task Group went beyond legitimate scientific monitoring and instead engaged in a coordinated scheme to mislead both the public and regulators about phenylephrine’s true efficacy. Specifically, the amended pleading alleges that the Task Group suppressed or withheld scientific evidence demonstrating the inefficacy of their phenylephrine-containing products, concealed or marginalized unfavourable studies, and simultaneously promoted misleading or biased studies that portrayed the products as effective. This coordinated conduct is said to have allowed the defendants to maintain artificially high prices and preserve a dominant market position, while Québec consumers continued to purchase ineffective products in reliance on the representations made. The conspiracy allegations therefore link the broader US-based scientific and regulatory strategy to the misrepresentations allegedly directed at Québec consumers, reinforcing the core narrative that the Cold Medicines did not work as promised.

Legal framework for amendments at the pre-authorization stage

Because the matter is still at the pre-authorization stage, the Court’s task in this judgment is not to decide whether the class action should ultimately be authorized, nor whether any of the causes of action are ultimately well founded on the merits. Instead, the question is whether the plaintiff should be permitted to amend his authorization application and include new parties, causes of action, and factual detail. Under article 585 of the Code of Civil Procedure, leave of the Court is required to modify pleadings in class actions. The Court reiterates well-established principles governing such amendment motions in the pre-authorization context, including that the right to amend is the rule and refusal the exception; that the general provisions on amendments (articles 206–208 C.p.c.) apply; and that the overarching principle of proportionality is especially important in class actions. The Court also emphasizes that proposed amendments must be pertinent to the evaluation of the article 575 C.p.c. authorization criteria and cannot merely “colour” the record without bearing on those criteria. It is not enough, by itself, that an amendment introduces an entirely new cause of action; refusal is warranted only where the new claim bears no link to the original proceeding. Nor should an amendment be rejected solely because it adds complexity to an already complex file, although the context and impact on case management must still be weighed. Crucially, when ruling on amendments, the Court must avoid anticipating the outcome of the future authorization hearing; it should not undertake, at this preliminary stage, the full analysis of whether each cause of action is ultimately defensible.

Defendants’ objections to the conspiracy claim and US affiliates

The defendants did not oppose all the proposed amendments. Their objections focused on the new civil conspiracy cause of action and the corresponding common question, as well as the addition of The Procter & Gamble Company (Procter & Gamble US) if the conspiracy component was not allowed. They argued that the original class action was fundamentally about false representations to Québec consumers concerning the effectiveness of the Cold Medicines, whereas the conspiracy allegations concerned a distinct scheme occurring entirely in the United States, overseen by a different regulator (the FDA), and were therefore disconnected from the Québec misrepresentation claims. In their view, the new allegations introduced excessive and unnecessary complexity by adding impertinent facts and extensive extraterritorial elements. The defendants further contended that civil conspiracy outside the context of anti-competitive price-fixing, already covered by section 45 of the federal Competition Act, does not exist as an independent cause of action under Québec civil law. They submitted that allowing such a claim would effectively create a new type of “civil conspiracy” remedy not recognized in Québec. As to Procter & Gamble US, the Canadian Procter & Gamble entity argued that, if the conspiracy amendments were rejected, there would be no pleaded basis to add its US affiliate, since the authorization application contained no specific allegations that the US company itself sold the Cold Medicines in Canada.

Court’s analysis of the link and relevance of the new claim

The Court concludes that the contested amendments, including the civil conspiracy theory and the addition of the US affiliates, should be allowed. It finds that the new cause of action is clearly linked to the original proceeding. The core of the proposed class action remains the same: alleged false representations to consumers about the effectiveness of the phenylephrine-containing Cold Medicines. The conspiracy allegations are not a separate, unrelated dispute; they are a legal recharacterization and deepening of the factual matrix underpinning the misrepresentation claims. Specifically, the new pleading asserts that the same misleading picture about phenylephrine’s efficacy—already central to the Québec consumer allegations—was the product of a coordinated scheme by the Task Group to manipulate and suppress scientific information. In determining whether a link exists, the Court stresses that it should look primarily at the factual overlap, not at whether the new claim is based on the same legal provisions as the original claim. Even if the conspiracy theory does not rest directly on the Consumer Protection Act, the Competition Act, or civil code provisions already invoked, it remains anchored in a “variation of the facts” connected to the initial allegations. The Court also holds that the defensibility of the conspiracy cause of action is an issue for the authorization stage under article 575 C.p.c., not for a preliminary amendment motion. It is at authorization that the Court will assess whether this cause of action presents an arguable right, including whether Québec law recognizes a stand-alone civil conspiracy claim in the circumstances and how any extraterritorial aspects affect the appearance of right.

Proportionality, complexity, and management of the case

On the question of case management and complexity, the Court acknowledges that the conspiracy allegations and foreign elements expand the factual record. However, it rejects the notion that this by itself justifies refusing the amendments. The authorization analysis can treat the conspiracy claim as a distinct cause of action and examine separately whether it is defensible and whether the alleged facts support the conclusions sought. Allowing the amendments does not, in the Court’s view, unduly complicate the authorization debate to the point of breaching proportionality. Instead, the Court reiterates that amendment rules in class actions must be applied with flexibility and openness, and that doubts should be resolved in favor of allowing the plaintiff to refine and complete his case at the pre-authorization stage, as long as the amendments are plausibly pertinent to the statutory criteria.

Decision, successful party, and monetary consequences

In the result, the Court grants the plaintiff’s Application for Permission to Amend the Application for Authorization to Institute a Class Action filed on 1 August 2025. It authorizes the modification of the original authorization application in line with the Amended Application for Authorization to Institute a Class Action dated 25 July 2025 and the new supporting exhibits. As a consequence, the new civil conspiracy cause of action and related allegations are incorporated into the authorization record, and the US affiliates, including Procter & Gamble US, are properly added as defendants because they are alleged members of the Task Group at the heart of the conspiracy theory. The successful party on this motion is therefore the plaintiff, Andrew Kraska, whose amendment request is fully allowed. The Court does not, however, award or quantify any damages, costs, or monetary amounts at this stage; it expressly states that judicial costs are “to follow” and leaves all questions of liability and quantum for future proceedings. Accordingly, while the plaintiff succeeds procedurally on the amendment motion, there is no determinable total monetary award, costs, or damages granted or ordered in his favor in this decision.