Discovery at the authorization stage of a class action has undergone a transformation in Quebec over the last ten years. Prior to 2003, article 1002 of the Code of Civil Procedure (“CCP”) required a Motion for authorization to be supported by an affidavit, which, over the years, resulted in sometimes lengthy and exhaustive examinations. The net effect was that debates on authorization were disproportionately long.
Modifications of the Authorization Procedure
In response, article 1002 CCP was modified so that the Court must consider the allegations of the Motion for authorization to be true, without the need for a supporting affidavit. However, in order to prevent the authorization of manifestly unfounded class actions, article 1002 CCP permits the judge to use his discretion to allow evidence, as he deems appropriate. For evidence to be appropriate, the evidence must permit the judge to verify, in a summary fashion, if the criteria of article 1003 CCP are met. Such evidence can take the form of either documents or examinations.
The approach to adducing evidence on certification motions in common law provinces is quite different from the approach taken in Quebec.
Initially Strict Interpretation The first judges to interpret the revised article 1002 CCP often did so in a restrictive fashion, in function of the Legislator’s clear intention to simplify and accelerate the authorization process, the requirement to consider the allegations of the Motion for authorization to be true, and the newly introduced rules regarding reasonable conduct and proportionality at articles 4.1 and 4.2 CCP.
It is in this context that Justice Clément Gascon (then of the Superior Court) summarized the criteria governing the scope of discovery at the authorization stage in Option Consommateurs v. Banque Amex du Canada:
- Given that the judge must, if the factual allegations appear to justify the claimed right, grant the Motion and authorize the class action, it is not always necessary to present evidence;
- The removal of the obligation of an affidavit and the limitation of examinations to those which are authorized facilitates and accelerates the process without neutralizing the role of the judge, as the law grants the judge the discretion to authorize relevant and appropriate evidence in the context of the authorization process;
- The judge must use his or her discretion to evaluate whether it is appropriate or useful to grant the right to present evidence or conduct examinations;
- The judge must be sure that the evidence sought or the examination requested will make it possible to verify if the criteria of article 1003 CCP are met;
- In the evaluation of the appropriateness of this evidence, the judge must act in accordance with the rules of reasonable conduct and proportionality set out in articles 4.1 and 4.2 CCP;
- The judge must not authorize evidence that will be relevant on the merits, as, at the authorization stage, he must deem the allegations of the Motion to be true without verifying their truth. At the authorization stage, the burden is one of demonstration and not of balance of probabilities;
- The burden of proving the appropriateness or usefulness of the evidence sought rests on the respondents. Furthermore, the respondents must specify the content and objective of the evidence which they seek and the examinations that they want to conduct, by linking their requests to the objectives of appropriateness, relevance and prudence already described.
More Relaxed Interpretation In the intervening years, the Courts have moved towards a more relaxed understanding of what constitutes appropriate evidence. As the Court of Appeal stated in Bouchard v. Agropur Coopérative:
“[...] the present case illustrates the importance that the presentation of evidence at the authorization stage can have. In fact, it permitted the addition of details which proved useful in examining the conditions set by law. In the actual state of the law, given that the Legislator removed the obligation for the Petitioner to provide an affidavit, judges will often be justified in considering requests to conduct examination(s) favourably.” [TRANSLATION]
The same 7 principles set out by Justice Gascon are still often applied, but with this guiding principle kept in mind (Allstate du Canada, compagnie d’assurances v. Agostino; Dick v. Johnson & Johnson inc.; Cunning v. Fitflop Ltd.; Wilkinson v. Coca-Cola Ltd.).
Practical Tips The Courts have been fairly even-handed in their approach to such requests, with the key issue often being whether the evidence or examinations requested address the merits of the case.
For example, in Wilkinson v. Coca-Cola Ltd., the Court allowed the transcript of the examination of the Petitioner as well as an affidavit to complete said examination, and one other affidavit, but refused two other affidavits because they would have resulted in the hearing on the Motion for authorization becoming a pre-trial on the merits.
In Dick v. Johnson & Johnson inc., the Court allowed one affidavit and evidence concerning the product recall, but refused an expert affidavit and a scientific article because they addressed questions to be dealt with on the merits, and thus were not useful in determining whether the criteria of article 1003 CCP were met. When the examination of the class representative is authorized, the transcripts will generally be ordered to be filed automatically into the court record.