In its recent decision in Rivard v. Eoliennes de l’Erable inc., the Superior Court of Quebec authorized a class action by landowners for alleged abnormal neighborhood disturbances in relation to the construction and exploitation of a wind farm.

Of particular interest is the Court’s application of two of the four criteria for authorization:

  • the facts alleged seem to justify the conclusions sought (art. 1003b) of the Code of Civil Procedure(CCP)); and
  • the composition of the class makes the application of article 59 (mandate) or 67 (joinder of suits) difficult or impracticable (art. 1003c) CCP).

Article 1003b) CCP – Sufficiency of factual allegations

The respondent argued that the factual allegations were insufficient to justify the conclusions sought.

The Court examines the sufficiency of the allegations from three different perspectives:

  1. Inconvenience caused by the construction of the wind farm;
  2. Inconvenience caused by the exploitation of the wind farm; and
  3. Abuse of right.

With respect to the first aspect, the Court holds that it cannot be seriously contested that the allegations are precise enough to justify the conclusions sought. This holding, alone, allows the Court to conclude that the criteria of article 1003 b) CCP is met.

With respect to the second aspect, the Court notes that the facts in support of this aspect of the claim were only summarily enumerated. However, examining these allegations along with certain photos filed, the Court holds that the petitioners have a defendable action.

Finally, with respect to abuse of right, which is governed by a completely different legal regime, the Court holds that there were no allegations in the motion for authorization which could give rise to a claim for abuse of right and no particular conclusions related to same. As such, it excluded the common questions relating to abuse of right from the class action.

The respondent further argued that, in light of the governmental authorizations it obtained and  the absence of precise allegations, the principle of proportionality provided for in article 4.2 CCP militate against authorization. The Court holds that authorizing the class action does not breach the principles of proportionality because (1) it found the allegations to be sufficient and (2) it held that the governmental authorizations obtained by the respondent are irrelevant in a claim for abnormal neighborhood disturbances in light of the Supreme Court of Canada decision in Ciment du St-Laurent v. Barrette.

Article 1003c) CCP – Size of the class

The respondent argued that the proposed class was small enough to allow for the application of article 59 or 67 CCP. The respondent identified 197 properties allegedly affected by the wind farm. Certain members of the proposed class had signed agreements with the respondent of two types. The first contained a release and an arbitration clause, the second did not. The respondent argued that all class members who signed either agreement should be excluded from the class.

The Court accepts to exclude the persons who signed the former agreement, given the release and the arbitration clause, but refused to exclude those who signed the second type of agreement, which neither released the respondent nor ousted the Court’s jurisdiction. Based on a map of residences, the Court also accepts to reduce the size of the class. As a result, the Court states that we can think that the class contains a few hundred people.

The Court reviewed the limited jurisprudence on the issue of small groups of claimants, starting with Voisins du Train de Banlieue de Blainville inc., where the size of the proposed class was similar and the Court of Appeal upheld the Superior Court’s finding that the petitioner had not sufficiently demonstrated that this criteria was met. The Court then examined the balance of the case law and concluded that there is a trend in favor of granting authorization in cases where it is a close call as to whether the group could use the procedures in articles 59 or 67 CCP instead of a class action. The Court held that the criteria was met in this case.

The issue of the size of the proposed class and whether application of articles 59 or 67 CCP would be difficult or impractical is distinct from the issue of the existence of an identifiable class. In a recent blog post, we discussed how an objective requirement of an identifiable class was read into the authorization criteria in article 1003a), b) and c) CCP. In this case, there was an identifiable class.

What this decision indicates is that a group of a few hundred persons may, depending on the circumstances, be impractical for the application of articles 59 or 67 CCP. The issue that will need to be further considered by the courts is where to draw the line as to when a group is too small or what other considerations must be taken into consideration in determining whether or not it this criteria is met.

Take aways

In addition to the above, there are two general take aways from this decision. First, constructors of important infrastructure projects approved by governmental authorities are exposed to class actions for abnormal neighborhood disturbances for the construction and the exploitation of these projects. Second, it is beneficial for a constructor to enter into agreements with potentially affected persons containing both a release and an arbitration clause to reduce the risk of class actions being authorized against them.