Class actions commenced in Montreal will soon undergo a significant procedural change. Starting December 31, 2018, a designated team of judges will be tasked with case managing and hearing all applications for authorization of class action proceedings filed in the district of Montreal, the most active district Quebec. This structure is similar to the current structure already in place in Ontario, under which a designated roster of class actions judges case manage all class proceedings through certification.
The new judicial team will be composed of 11 judges selected for their experience and familiarity with class actions (the “Team”). These judges will hear all applications for authorization and all preliminary motions before authorization. If and when a class action is authorized by one of the assigned judges from the Team, the case will be transferred to one of the other 63 judges of the civil division of the Superior Court for management of the merits stage of the proceeding and the trial. This is a change from the current system in Quebec, under the which the same judge who manages authorization also presides over the trial on the merits.
The judges have already been selected. They are: Justices André PRÉVOST, Gary D.D. MORRISON, Élise POISSON, Chantal TREMBLAY, Chantal CORRIVEAU, Thomas M. DAVIS, Donald BISSON, Chantal CHATELAIN, Stephen W. HAMILTON, Chantal LAMARCHE and Pierre-C. GAGNON. Each judge will manage between 20 and 30 cases.
Ongoing class actions in Montreal will be transitioned to the new structure between September 1, 2018 to December 31, 2018, as follows:
- Any ongoing but not yet authorized case that has been assigned to a judge who is not part of the Team will be reassigned to a judge of the Team;
- Any ongoing but not yet authorized case that has been assigned to a judge who is part of the Team will remain assigned to the same judge until the judgment on the authorization is rendered;
- Any ongoing authorized case that has been assigned to a judge who is not part of the Team will remain assigned to the same judge until a judgment on the merits is rendered;
- Any ongoing authorized case that has been assigned to a judge who is part of the Team will be reassigned to a judge who is not part of the Team.
Exceptions could be made if the complexity of the case requires it.
Clients currently involved in class action proceedings filed in the district of Montreal should check with their counsel to see whether and how the change will affect their case.
The stated objective behind the new structure is to reduce delays in obtaining an authorization judgment. Specific days will be set aside in the schedule of the judges on the Team for hearings on authorization and related motions. However, increasing the speed with which class actions in Montreal get to authorization may not be a welcome change for all. Related class proceedings in multiple provinces are now commonplace in Canada, and one might ask whether the reform will affect the coordination of multi-jurisdictional class actions. Actions in Quebec already typically proceed to authorization more quickly than cases get to certification in the rest of Canada, and the anticipated accelerating effect of the reform might further complicate the coordination of class proceedings that involve a Quebec action. It remains to be seen how exactly Team judges will deal with this issue.
The new class action Chambers system may also be perceived as a procedural response to the permissive approach to authorization adopted by the Quebec Court of Appeal. Recent cases such as Charles c. Boiron Canada inc., 2016 QCCA 1716, Sibiga c. Fido Solutions inc., 2016 QCCA 1299 and J.J. c. Oratoire Saint-Joseph du Mont-Royal, 2017 QCCA 1460 have confirmed the QCCA’s view that judges have little discretion to refuse authorization, and ought only weed out putative class actions at the authorization stage if they are frivolous or have no prospect of success. The new procedure may be seen as a formalization of the approach, intended to make the authorization process even quicker and more formulaic. Some perceive that the liberal approach to authorization undermines defendants’ rights and results in the approval of class actions that are tenuous or unmanageable.
Nevertheless, for defendants facing class actions in Quebec, having their case assigned to a judge with class actions experience to manage preliminary issues and the authorization may be a welcomed change. The automatic transfer of the case to a different judge for the merits stage and the trial could also be seen as beneficial by bringing a fresh pair of eyes to the issues raised in the class action.
Some may also argue the reforms should go further. While there will now be a dedicated Team of experienced class action judges to hear and manage the authorization stage, this “specialization” does not carry over to the merits stage, which will be presided over by one of the other 63 judges who are not part of the dedicated class actions Team. However, the merits stage of a class action can also raise complex issues specific to class action proceedings, such as the feasibility of collective recovery. Adjudication of these issues might also benefit from oversight by judges with more familiarity with class actions.