In September 2015, the Superior Court of Québec (Court) released a landmark decision rendered by Justice C. Masse in Deraspe v. Zinc électrolytique du Canada ltée, in which — for the first time in the area of class actions — the Court granted a motion for declaration of improper use of procedure, incapacity and quarrelsome conduct against a representative and his counsel.
The class action was filed on March 19, 2012, in response to a sulfuric anhydride leak that occurred on August 9, 2004, at the zinc refinery plant operated by Zinc Électrolytique du Canada Ltée (EZC) in Salaberry-de-Valleyfield (Action). The applicant, François Deraspe, alleged that the leak had caused a range of symptoms to exposed individuals.
During the hearing of the motion, the plaintiff’s counsel maintained, among other things, that Justice Masse had been ordered to grant the motion, which led EZC’s counsel to file a motion for declaration of improper use of procedure, incapacity and quarrelsome conduct against Mr. Deraspe and his counsel. According to the Court, Mr. Deraspe and his counsel, Ms. Chantal Desjardins, exhibited improper and vexatious conduct throughout the proceedings. Among other things, the plaintiff and his counsel engaged in a series of vexatious proceedings and correspondence, “riddled with insults, and unsubstantiated attacks” [translation]. In countless interventions with the Chief Justice of the Court, the plaintiff’s counsel used an “inappropriate, sometimes even menacing, and constantly disrespectful tone” [translation]. The plaintiff’s counsel even tried to turn the judge assigned to managing the case into a party to the dispute. In addition, the plaintiff claimed C$1-million from each of EZC’s and defendants’ law firms for exemplary and reputational damage, alleging that the firms “had defrauded the administration of justice” [translation].
REASONS FOR JUDGMENT
The Court granted the motion, stripped Mr. Deraspe of representative status and ordered his counsel to transfer the case to the Office of the Syndic of the Quebec Bar Association. The plaintiff and his counsel were both declared vexatious litigants in connection with the Action and were solitarily condemned to pay the costs. Out of concern for the interests of the class members, the Court suspended the case for a period not exceeding six months to allow it to be resumed by a new representative and counsel, rather than dismissing it on the merits.
Application of CCP Article 54.1 to Class Actions
Taking the lead from the Court’s comments in Marcotte v. Longueuil (City), the Court applied Articles 4.1, 4.2 and 54.1 of the Code of Civil Procedure (CCP), which allow the Court to impose sanctions for improper use of procedure and conduct likely to bring the administration of justice into disrepute. The Court further pointed out that, even if CCP Article 54.1 did not apply, its inherent powers would allow it to impose sanctions for improper and vexatious conduct as such sanctions were necessary to allow it to fulfil its duties in a fair and reasonable fashion.
The Court also pointed out that had the defendants not filed the motion for declaration of improper use of procedure, incapacity and quarrelsome conduct, it would have been appropriate for the Court to intervene with its own motion in order to impose sanctions for the representative’s and his counsel’s conduct.
Since the Court was unable to determine whether counsel or the representative was responsible for the improper use of procedure, it ruled that both were liable for the quarrelsome conduct that prevailed in this case and imposed sanctions on both of them.
Removing Status of Representative
The plaintiff submitted that the wording of CCP Articles 1023 and 1024 is restrictive and that he could lose his status of representative only through the application of these provisions. The Court did not accept this interpretation and held that these provisions did not exclude the application of other provisions that allow the Court to ensure a healthy administration of justice. In addition, CCP Articles 1023 and 1024 and Article 54.1 are not incompatible. Since Ms. Desjardins’s numerous proceedings were supported by Mr. Deraspe’s affidavits or had been authorized by him, his conduct conflicted with the interests of the class members and his responsibilities as a representative. The Court therefore stripped him of his status as a representative.
Removing Counsel from a Case
Ms. Desjardins maintained that CCP Article 54.1 refers to a “party” rather than its counsel, meaning that no sanctions could be imposed upon her, pursuant to this provision. The Court, however, ruled that this provision did not interfere with the exercise of its inherent powers with respect to counsel. The Court maintained that, in addition to her conduct, which brought the administration of justice into disrepute, Ms. Desjardins demonstrated that she no longer had the independence required of counsel to advise a client when she personally filed an application in the same case. The Court thus ordered Ms. Desjardins to transfer the entire case to the Office of the Syndic of the Quebec Bar Association and suspended the case for a period of six months to allow it to be resumed by a new counsel.
This is the first class action in which the Court draws the line in terms of improper and vexatious conduct by a representative and his counsel. Even though this decision was rendered under exceptional circumstances, it shows that improper use of procedure by the representative and his counsel within the framework of a class action can give rise to sanctions at the defendant’s request or even by the Court of its own motion. This decision is a clear warning to the parties, including the representative, to refrain from adopting conduct that brings the administration of justice into disrepute within the framework of a class action.