With the coming into force of the new Code of Civil Procedure on January 1, 2016, some interesting changes have been made to the rules governing class actions in Quebec.
Nearly 40 years after the introduction of the class action into Quebec law and more than 10 years after the last major revision of the rules pertaining to it, the début of the New Code of Civil Procedure (the “NCCP”) is bringing about some interesting changes that will have an impact on current practices in this area of the law.
While the essence of the current class action regime, the authorization test and the procedural rules pertaining to such disputes remain unchanged, the rights of the parties take on some new aspects and some new concepts are introduced with the NCCP. The new class action provisions are set out in articles 571 to 604 of the NCCP.
Some of the changes tend to harmonize Quebec’s class action regime with that of the other Canadian provinces and will bring Quebec closer in line with certain common law jurisdictions in that respect.
The major changes and innovations in the class actions area brought in by the NCCP are summarized below. They are listed as they appear numerically in the new Code, and not by order of importance.
- Class Membership for Legal Persons, Partnerships and Associations Employing More Than 50 Employees (Article 571 NCCP / Article 999 current CCP)
Currently, legal persons, partnerships and associations that had more than 50 people in their employ during the 12 months prior to the filing of a motion for authorization to institute a class action cannot be class members.
The NCCP does away with this exclusion, such that any legal person, partnership or association will now be able to a member of the class action group, and consequently eligible to act as representative of the group.
The possibility for large corporations to be members of a class action could give rise to alternative remedies not geared towards awarding monetary damages to individuals, and could lead to increases in quantum.
- Setting up a Website (Article 576 NCCP / Articles 1004 and 1005 current CCP)
In the judgment authorizing a class action, the Court may now order that a website be set up to make information on the class action available to members. The NCCP does not specify who shall bear the costs associated with the website.
Concurrent Multijurisdictional Class Actions (Article 576 NCCP) The NCCP affords greater protection to the rights and interests of Quebec residents in connection with multijurisdictional class actions.
Courts can no longer suspend an action instituted in Quebec on the grounds that the Quebec class members are covered by an action pending outside the province. The Court is now required to have regard for the protection of the rights and interests of Quebec residents when such a motion for suspension is filed. The Court may also authorize another representative to carry on the proposed class action involving the same subject matter if it is convinced that the class members’ interests would thus be better served.
The interaction between these new provisions and those of the Civil Code of Quebec on international lis pendens and the recognition of foreign judgments will be of great interest.
Respondent’s Right of Appeal of a Judgment Authorizing a Class Action (Article 578 NCCP / Article 1010 current CCP)
This is probably the most significant development for class actions under the NCCP. The respondent may now appeal the judgment authorizing the class action, with leave from a judge of the Court of Appeal.
The test for granting leave is not defined in the NCCP, so the Court of Appeal’s initial rulings on this point are going to be highly anticipated.
A judgment denying authorization can still be appealed as of right by the Petitioner.
- Notifying Class Members (Article 579 NCCP / Articles 1006 and 1046 current CCP)
The NCCP provides for the possibility of notifying members individually of the authorization of the class action. This is a much more direct and personalized mode of notice, provided of course that the class members have been identified.
- Disbursements of the Representative (Articles 593 and 598 NCCP)
Hitherto not allowed by the courts, the disbursements of the representative plaintiff in connection with the class action may now be recovered through an indemnity awarded by the Court, in addition to court costs and lawyers fees. All of the foregoing are payable out of the amount recovered at the outcome of the class action.
Generally speaking, the case law pertaining to the current class actions regime should continue to apply, mutatis mutandis, under the NCCP.
The new provisions, however, promise to yield interesting jurisprudential developments, which are sure to give litigants and practitioners new ways and means to navigate the waters of Quebec class actions law.