On June 23, 2009, the Superior Court of Quebec dismissed a motion for certification of a class action brought by Marie-France Cyr v. Ville de Ste-Adèle & al,1 in a water contamination suit.
The petitioner alleged that she had been psychologically affected after two racoons and a bird were found dead in a water reservoir servicing one of Ste-Adèle’s neighbourhoods in 2007. She requested authorization to bring a class action on behalf of the residents of that district who had suffered psychological damage in connection with the use and consumption of potable water contaminated because of the presence of these animals.
The petitioner argued for the certification of the class action on the grounds that the conditions of article 1003 of the Civil Code of Procedure (C.C.P.) were met, namely: (i) there were identical, similar or related questions of law or fact, (ii) the action had a color of right, (iii) a class action was the appropriate procedure given the nature of the action, and (iv) the petitioner was in a position to adequately represent the group members. The City of Ste-Adèle argued that none of these conditions had been met.
In his decision, Justice Benoit Émery retained the City of Ste-Adèle’s arguments and essentially concluded that none of the conditions of article 1003 C.C.P. had been met. He therefore dismissed the motion for certification with costs.
Analyzing each of article 1003 C.C.P.’s conditions, Justice Émery noted that although the petitioner need not establish her right by a preponderance of proof, the Court must nevertheless find a "serious color of right" in light of the alleged facts. Vague, general, and imprecise allegations are therefore insufficient. In the case at hand, the petitioner claimed that due to a lack of surveillance, two racoons and a bird were able to access the reservoir and drown therein, resulting in psychological injury to the users of the municipal aqueduct. Justice Émery held that no direct causal link could be inferred between the City of Ste-Adèle’s alleged failure to monitor the reservoir and the emergence of a psychological injury for the petitioner. At most, Justice Émery explained, the lack of surveillance could constitute a "condition of the damage", but cannot be said to be its cause. The judge therefore concluded that the facts did not seem to justify the conclusions sought.
Justice Émery also held that the petitioner had not sufficiently demonstrated the existence of common questions, due to the uniqueness of the injury suffered as well as its highly subjective character. Referring to a recent Supreme Court of Canada decision2 in which it was suggested that psychological injury must meet a certain threshold to be compensable, Justice Émery pointed out that even if the petitioner had actually been traumatized, this cannot be taken to mean that the other residents had as well.
Moreover, Justice Émery rejected the claim that a class action was the appropriate procedure given the nature of the case, explaining that the streets in the district serviced by the reservoir were identifiable and contained a limited number of residents, making a joint or mandated action possible.
Lastly, Justice Émery held that it was not sufficient for the petitioner to merely allege that she suffered psychological prejudice herself and that she was prepared to devote the necessary time to the litigation in order to be a qualified representative of the group she hoped to represent.
McCarthy Tétrault’s Comments
The Superior Court decision in Marie-France Cyr c. Ville de Ste-Adèle & al shows that courts are taking an increasingly rigorous approach in their analysis of the juridical requirements that must be met by a petitioner who seeks authorization to institute a class action. The petitioner must therefore show a "true color of right", and vague, general, or imprecise allegations are not sufficient.
This decision is also noteworthy in its recognition that allegations of psychological injury are highly subjective by their nature and are therefore often ill-suited to be the subject of class action suits.