In Martel v. Kia Canada inc., 2017 QCCS 976, the Quebec Superior Court (Justice Chantal Tremblay) ruled on a motion by the defendant to examine class members. The motion was filed by Kia shortly after class counsel stated that they would call six previously unannounced witnesses at trial, all class members. The Court agreed that Kia should be able to examine all six class members on discovery before the case could be set down for trial and clarified the applicable test for pre-trial examinations of class members.

Background

A class action was authorized (certified) against Kia on June 12, 2015 by the Quebec Court of Appeal (reversing the Superior Court). Among the common questions identified by the Quebec Court of Appeal were whether the information regarding maintenance frequency found in the owners’ manuals was false and, if so, whether this was a “false or misleading representation to a consumer” within the meaning of Quebec’s Consumer Protection Act. The petitioner sought to have the sums allegedly paid in excess for additional maintenance be reimbursed.

In August 2015, the parties held a case management conference and agreed on a litigation timetable. In November 2015, the defendant filed a motion to examine ten class members out of court, which was denied. In November 2016, class counsel submitted a draft declaration of readiness to proceed to trial to the defendant, the joint filing of which by the parties would have set down the case for trial.

In the draft declaration, class counsel stated that they would call the six unannounced witnesses at trial. This led to another case management conference in December 2016, where the Court asked class counsel to provide specific information regarding the intended content of the class members’ testimonies. After class counsel transmitted the responses, the defendant filed a motion to examine the six new witnesses out of court.

The defendant’s motion was based upon articles 158 and 587 of the Code of Civil Procedure (“CCP”), which came into force in 2016. The defendant argued that it should be able to know the class members’ version of events prior to trial as well as being able to identify the proper evidence so as to rebut the claims made by the representative plaintiff at trial. Class counsel responded that the litigation timetable allowed no such class member examinations, that the motion was late in addition to being precluded pursuant to the doctrine of res judicata following the earlier November 2015 judgment and, finally, that the examinations would be useless.

The Test for Allowing Out of Court Examinations of Class Members and Its Application

Quoting Lalande v. Compagnie d’arrimage du Québec Ltée, 2016 QCCS 2367, the Court first reviewed the test for allowing out of court examinations of class members. When faced with such a motion, the judge has vast discretionary powers for case management. The Court can grant the motion if it deems the examinations useful for adjudicating common questions. While not exactly parties in the strictest sense of the term, class members can be considered “quasi-parties,” which means that they cannot be contacted by defendants or their attorneys without the class counsel being present.

When considering whether to exercise their discretionary powers, courts must take into account proportionality, the CCP’s preliminary provision, and the “guiding principles of procedure,” including cooperation and disclosure of evidence. The examination will not be allowed if it is only concerned with individual questions or if the evidence derived from it is merely a collection of individual circumstances.

In granting the motion, the Court considered the fact that class counsel refused to provide further details regarding the intended testimonies, or to explain why those six class members had been retained. When asked by the Court to provide specific information, class counsel merely provided generic information.

The Court concluded that the defendant should have all the necessary information regarding the six new witnesses and noted approvingly that the planned examinations had “very short” durations.

Implications

The Martel ruling demonstrates that, given proper circumstances, courts can and do allow out of court examination of class members at a later stage of the proceedings. The fact that parties were on the verge of filing a joint declaration of readiness, which would have set down the case for trial, was not in and of itself an obstacle to the application. It is also worth noting that class counsel’s reluctance to provide specific information regarding the intended content of the class members’ testimonies ultimately had an adverse impact on the Court’s conclusions. The case thus illustrates the growing influence of the above-mentioned guiding principles of procedure on the courts’ decision-making process.