In October 2013 and January 2014, the Supreme Court of Canada rendered two key decisions, on appeal from the Quebec courts, on the criteria for authorization to institute a class action, namely Infineon[1] and Vivendi[2]. Some authors interpreted these judgements as an attenuation of the demonstrative burden imposed on petitioners at the authorization stage. These two decisions, coupled with the previous judgment of the same court in St. Lawrence Cement[3], which eliminated the concept of fault with respect to neighbourhood disturbances, had many worrying that the threshold for authorization had arguably been transformed into a rubber-stamping exercise, and that, as a result, Quebec courts would soon be overrun by environmental class actions.

Eighteen months later, the question arises: were these concerns justified? As of March 2015, four cases on authorization of a class action in environmental matters had been rendered by Quebec courts. In three of these cases, the class action was authorized. At first glance, it might seem that the apprehension of a lower burden of proof was justified. However, a more thorough analysis of these decisions confirms that the criteria surrounding authorization had not been diminished by the most recent Supreme Court decisions.

In Lalande v. Compagnie d’arrimage de Québec ltée[4], the petitioners had brought a class action claiming damages were allegedly suffered due to a cloud of red dust originating from the defendants’ iron ore transshipment facility. The petitioners claimed compensatory and punitive damages and also sought an injunction.

The Court quickly dismissed the motion for an injunction, as the petitioners failed to demonstrate an arguable case. Indeed, the Court noted that an injunction requires either an existing or a future and certain prejudice, which it found was not the case.

As for the punitive damages claimed pursuant to the Charter of Human Rights and Freedoms[5], the Court also refused to authorize the class action on this basis, explaining that the petitioners had not alleged any facts which could constitute unlawful and intentional interference on the part of the respondents.

Regarding the claim for compensatory damages, the only criterion contested by one of the respondents was the territorial scope of the class action. The Court found that the allegations and the documents filed were sufficient to support an arguable case and observed that the group could eventually be modified further along in the proceedings.

The other respondent argued that there were no factual allegations that could support petitioner’s claim against him. Although the Court recognized that the petitioners had little to no allegations to support their civil fault claim, the Court could not conclude, at a preliminary stage, that the petitioner’s case was indefensible. Interestingly, the Court summarized its understanding of the Infineon and Vivendi cases, stating that, at the authorisation stage, petitioners need only present an arguable case, even if the allegations of fact are vague, general and imprecise[6]. Yet, the Supreme Court has instead stated that the petitioner’s burden at this stage is to establish an arguable case, where the factual allegations cannot be vague, general or imprecise[7].

The class action was thus authorized to proceed only with regard to the claim for compensatory damages.

In Rivard v. Éoliennes de l’Érable inc.[8], the Superior Court authorized the first class action against a wind power project in Quebec. The petitioners wanted to be compensated for the alleged inconveniences caused by the construction and eventual operation of the wind farm.

The Court found that the allegations of the petitioners, at first blush, seemed to justify their claim. On the other hand, the defendant’s argument that his project was perfectly legal did not preclude the class action in a case of alleged neighbourhood disturbances, since such disturbance is assessed on a no-fault basis.

Regarding the composition of the group, the Court concluded that the use of mandates or a joinder of lawsuits would be difficult (the motion targeted roughly 190 dwellings), thereby giving the benefit of the doubt to the petitioners in what he considered to be a “borderline case”.

Finally, the Court granted the petitioner representative status and authorized the class action.

In Kennedy v. Colacem Canada inc.[9], the petitioners had instituted a class action for the damages allegedly caused by the operation of a cement plant, claiming compensatory damages and punitive damages and asking for an injunction.

Regarding the criterion of the disclosure of a good color of right, the Court noted that the petitioners may not simply make bald assertions, but must present some evidence to substantiate an arguable case. The Court also mentioned that Quebec law does not allow for the compensation of risks of future damages such that the allegations of risk of damage to human health, fauna and flora from the pollutants emitted by the cement plant were unable to justify a legal proceeding.

In the end, the Court authorized the class action only for compensatory damages and for some of the alleged inconveniences, as well as for the injunction.

Finally, in Dupuis v. Canada (Procureur général)[10], the Court dismissed the motion for authorization. The petitioners were claiming damages following the flooding of the Richelieu river in the spring of 2011, as well as an order for the defendants to undertake work to regularise the flow of the river.

When analyzing the criterion of the good colour of right, the Court wrote that it had the obligation to avoid that the parties undergo weeks or months of trial on the merits if a fundamental question of the case could be answered at the authorization hearing, such as the defense of immunity presented by the defendants. The Court ultimately arrived at the conclusion that the immunity applied and thus that it was plain and obvious that the case would fail.

Though unnecessary, the Court nonetheless analyzed the other criteria applicable to the authorization of the class action. On the requirement that there be sufficient common questions, the Court made interesting comments. Indeed, the Court judged that the multiple and various circumstances of the class members, namely homeowners that were victims of the flooding, would have posed a very significant challenge. Citing Infineon, the Court held that it would not have resulted either in small individual trials or modest claims. As such, the Court concluded that even if there was a common question of fact (the flooding) and some common questions of law, their resolution would not be sufficient to affect significantly enough the outcome of the class action, as complex individual trials would still be needed. The class action was not authorized.

In conclusion, our analysis shows that the Supreme Court’s decisions have not provided a free-pass to the authorization of environmental class actions in Quebec. The judge still possesses an important discretion in respect of the application of the four criteria for authorization of a class action where the principle of proportionality has to be considered for each of the criteria. The Court has to exercise in depth its role to filter the bringing of class actions in order to avoid the mutual inconvenience of a long trial on the merits for a matter that does not disclose a good colour of right. The petitioners may not simply make unsubstantiated assertions, but must rather present some evidence to establish an arguable case. Finally, regarding the common questions criterion, even if such questions do not need to elicit common answers, they must nonetheless move the litigation forward in a meaningful way and not give rise to complex individual trials to settle the member’s claims.