Québec: A Distinct Society and Legal Tradition
With its Civil Code and continental origins, Québec has always occupied a unique place in Canada’s legal landscape. Its institutions, traditions and culture, although enriched by Anglo-American influences, have traditionally set it apart from those of the common-law provinces. It is perhaps not surprising that this difference also extends to the procedural setting and, more specifically, to the area of group litigation. Interestingly, in 1979 Québec became the first Canadian province to adopt the class action.
In Québec, a class action must be ‘authorized’ by the Superior Court. The petitioner must file a motion that states the facts of the case, specifies the legal basis of the proceedings and describes the group that he or she wishes to represent. The court does not evaluate the merits of the would-be class action, only concludes whether or not it is legally viable.
In 2003, the National Assembly implemented significant changes to the class action regime. Motions for authorization no longer have to be supported by an affidavit and may only be contested orally. Evidence can be filed, but only at the judge’s discretion.
These changes were ostensibly designed to diminish the administrative costs generated by lengthy pre-authorization proceedings. Among the problematic aspects of these reforms, they failed to recognize the importance of the authorization hearing, which will often determine whether or not the parties decide to settle the litigation out of court.
Early Case Law (2003–2005)
In the years immediately following these amendments, courts adopted a liberal approach. Not only was authorization easier to secure, but also judges were reluctant to allow defence counsel to conduct examinations, file affidavits or adduce limited documentary evidence. The authorization hearing is not a trial on the merits, judgment after judgment reiterated, and should not be subject to the same procedural rules.
This liberal jurisprudence reached its apogee in Pharmascience Inc. v. Option consommateur, in which the Court of Appeal stressed the screening function of the hearing on authorization: it is a filter that allows the motions judge to weed out cases that are frivolous or unfounded. Courts do not evaluate the merits of the proposed class action, they simply determine whether the facts alleged are logically related to the legal conclusions.
Contemporary Case Law (2006 to present)
Québec judges are now, however, increasingly invoking their discretionary powers to allow the submission of relevant evidence and the examination of petitioners. Judges are also more prepared to dismiss these motions.
This tougher, more pragmatic stance was evidenced by the Court of Appeal in Bouchard v. Agropur Coopérative. The court held that industry-wide class actions — that is, proceedings that target systemic commercial practices — cannot be authorized unless the petitioner has a cause of action against each of the named defendants.
McCarthy Tétrault Notes:
Although Québec’s rules on authorization differ from those in the common-law provinces, recent case law suggests that these differences should not be overstated. While the procedural reforms in Québec place less of an onus on plaintiffs, the basic architecture of the class action regime remains similar to that of most other North American jurisdictions.
Furthermore, the judicial interpretation of core legislative provisions suggests that Québec courts require a comparable level of legal and intellectual rigour from petitioners.
While some observers have speculated Québec may become Canada’s ‘class action haven,’ that possibility has never materialized and seems particularly unlikely under the current circumstances