In Filion v. Québec (Procureure générale), the Québec Court of Appeal overturned a decision of the Superior Court which held that “Non-Registered” class members were not clients of Plaintiffs’ counsel. The Court of Appeal consequently determined that the Defendant’s counsel was not entitled to meet with any class members without Plaintiffs’ counsel being present.

Background

The Plaintiffs were authorized to file a class action on behalf of people living near the Laurentian Autoroute allegedly affected by the noise of increasing road traffic. Defendant’s counsel brought a motion requesting that the Court order Plaintiffs’ counsel to provide a list of Registered Members in order to identify the Non-Registered Members and meet with some of them without Plaintiffs’ counsel present.

The Superior Court granted this motion, distinguishing “Registered Members” of a class – who either registered for the class action, attended information sessions held by Plaintiffs’ counsel or otherwise met with Plaintiffs’ counsel regarding the class action – from “Non-Registered Members”.

Court of Appeal Decision

The majority of the Court of Appeal rejected the notion that two different categories of class members exist. The Court held that the notion of members of the class is a consistent and uniform legal concept: you either are a member of the class (this includes the representative and any intervener) or you are not (this includes those who opt out of the class action or are deemed to have done so).

Moreover, the majority held that all class members (with the exception of the representative and any intervener):

  • are equal and enjoy the same rights;
  • benefit from a relative right to anonymity;
  • do not have to take part in the proceedings until the recovery stage;
  • do not have to support costs of the action (in money, time and energy); and
  • do not have to hire a lawyer while having a right to payment in the event of success.

Referring to Société des loteries du Québec v. Brochu and Imperial Tobacco Canada Ltd. v. Létourneau, the majority reiterated that class members are not to be considered as third parties or simple witnesses, but rather as “quasi-parties” to the proceedings.

Noting that, if the Superior Court judge was right that a certain form of attorney client relationship exists between the Registered Members and class counsel, the list of Registered Members may itself be privileged, as the fact that a citizen consulted a lawyer is protected by attorney-client privilege, the Court of Appeal held that Defendant does not have a right to the list of the Registered Members.

Reiterating the reasons above, the Court also held that Defendant’s counsel does not have the right to meet with the Non-Registered Members outside the presence of Plaintiffs’ counsel as this would be contrary to article 1019 of the Civil code of procedure, which requires court authorization prior to examining any class members. The Court also underlined that, whether from the perspective of attorney-client privilege or litigation privilege, such meetings would be inappropriate.

Implications For Parties To Class Actions

Although the Court of Appeal’s decision has the effect of clarifying the status of class members by eradicating any distinction between Registered Members and Non-Registered Members, the Court of Appeal emphasized the limited application of this decision to the facts of this case.

The Court specifically noted that its decision cannot be interpreted as putting into question the common practice of petitioners joining a list of potential class members to motions for authorization to institute class actions.

These comments also make it clear that this decision does not affect the possibility for a defendant to file a motion in order to obtain access to a complete list of class members, which makes no distinction between Registered and Non-Registered members, in appropriate circumstances.