Justice Donald Bisson of the Superior Court of Québec has authorized (certified) a class action against Mr. Gilbert Rozon, on behalf of a class defined as “All the persons who were attacked and/or sexually harassed by Gilbert Rozon.” The formal name of the case is Les Courageuses c. Gilbert Rozon.
The application for authorization to institute a class action alleges that Mr. Rozon has sexually assaulted or harassed several girls and women over the past decades. Mr. Rozon’s lawyers argued that there was no cause of action, that there were no identical, similar or related questions of law or fact (the Québec expression for “common issues”) and that the group was “circular,” in other words, that potential class members could only know if there were in the class after the trial on the merit.
The named plaintiff is an association called “Les Courageuses,” the “courageous ones,” but the representative plaintiff is Ms. Patricia Tulasne, an actress, who alleged that she was sexually assaulted by Rozon in 1994. Mr. Rozon had also pleaded guilty to a charge of sexual assault in 1998. Ms. Tulasne allege that Mr. Rozon sexually abused several girls and women. She asks for $40,000 in compensatory damages for herself. She does not claim a specific amount of compensatory damages for the other class members. She asks for $10,000,000 in punitive damages globally for the entire class.
Mr. Rozon is well-known in Québec, having founded the Just for Laughs festival in 1993.
Is There a Cause of Action?
One of the requirements of the Code of Civil Procedure of Québec is that the facts alleged by the plaintiffs must appear to justify the conclusions (remedy) that they seek. Mr. Rozon did not specifically deny the facts alleged in the motion for authorization, but argued that the interpretation of the events was at issue, that the claims were prescribed (statute-barred) and that there were no allegations supporting the claims that the girls or women had been incapable of acting, one of the exceptions to the rules of prescription.
Justice Bisson ruled that the facts alleged were sufficient at the authorization stage of the proceedings to justify the conclusions sought.
Identical, Similar or Related Questions of Law or Fact
Another requirement of the Code of Civil Procedure is that the claims of the members must raise identical, similar or related questions of law or fact. In Québec, the courts take the view that one question of law or fact is sufficient. It does not have to be determinative, but it must facilitate the progress of the litigation to some degree.
The plaintiffs alleged that Mr. Rozon was a rich and powerful man and that he used his power and influence in the artistic, political and social arenas to sexually assault or harass women in his entourage with impunity. Nine women were interviewed by a Québec newspaper, and they all told a similar story. Mr. Rozon’s lawyers argued that cases like this one raise intrinsically individual issues and that there was no common thread between the claims of the potential class members. They also argued that there was not one common issue of law of fact that would move the litigation forward even minimally. They argued that consent to a sexual relation is an inherently individual matter, and that the same can be said about the context of the alleged sexual assault, the nature of the relationship between Mr. Rozon and the victims as well as the circumstances that could justify their failure to file a claim within the prescription period.
Justice Bisson did not accept these submissions. The plaintiffs proposed the following questions of fact and law to be determined on a collective basis, and Justice Bisson accepted that they were proper in the circumstances.
1) Did the defendant Rozon systematically commit sexual assaults and/or sexual harassment towards girls and women?
2) Did the defendant Rozon abuse his power and influential situation to commit sexual assaults and/or sexual harassment?
3) Did the defendant Rozon act in a similar abusive manner toward girls and women?
4) What are the categories of damages, prejudice or sequelae common to the victims of sexual assault and/or sexual harassment?
5) Does the fact of being the victim of sexual assaults and/or sexual harassment cause damages in se?
6) What are the common elements in the situation of the class members respecting the impossibility in fact of acting?
7) Did the defendant Rozon intentionally affect the class members’ rights to their safety, integrity and dignity?
8) Should the defendant Rozon be ordered to pay punitive damages?
9) What is the amount of punitive damages that Rozon should be ordered to pay, collectively, to punish him and dissuade him from that kind of behaviour?
Justice Bisson found that the allegations of the motion for authorization demonstrated that there was a modus operandi on the part of Mr. Rozon, that he selected his victims in the artistic, social and political sphere in which he was a prominent man owing to his status. Justice Bisson found that every victim would benefit from a common determination of that set of facts. That said, he added that several plaintiffs would have to testify to prove the common facts.
Justice Bisson added that the matter of the impossibility of acting was also common because it was based on the status of Mr. Rozon in the artistic, social and political spheres. Justice Bisson further found that the proof of the moral damages (a category of damages in Québec civil law) and monetary damages are also common to all class members. He said that evidence of the categories of sequelae commonly found in sexual abuse victims will be helpful.
Finally, Justice Bisson said that the issue of punitive damages is also a common issue because it is linked to the intentional character of the sexual assaults or sexual harassment.
Are the Representative Actions or a Consolidation of Proceedings Better than a Class Action?
Under the Code of Civil Procedure, the composition of the class must make it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others (representative actions) or for consolidation of proceedings. The number of possible victims assault is said to be 20, but the plaintiffs allege that there might be other girls or women.
Mr. Rozon argued that 20 possible members were no a sufficiently high number to a justify class action.
Once again, Justice Bisson did not agree.
Is the Proposed Class Representative Capable of Properly Representing the Interest of the Class Members?
Mr. Rozon did not challenge that this authorization requirements were met, and Justice Bisson found that Les Courageuses satisfied the adequate representative requirement.
Under the Québec rules, a defendant must seek leave to appeal to the Court of Appeal from a judgment authorizing the institution of a class action. The Court of Appeal does not grant the right to appeal as a matter of course, and the defendant must raise an important issue of principle.
It remains to be seen whether Rozon will seek leave to appeal from this decision.