In a recent blog post , we discussed the Ontario Court’s consideration of the existence of an identifiable class in deciding whether or not to certify a class action, both from an objective perspective (i.e. the existence of an identifiable class) and from a subjective perspective (i.e. whether or not the petitioner must prove that the members of the class “desire to pursue their claims by way of a class action”).
While Quebec courts have yet to address the subjective aspect, they have adopted an approach similar to the common law trend and incorporated the objective criteria into their analysis.
New importance ascribed to the capacity of a representative to represent the class
In the recent case Hébert v. Kia Canada Inc., citing the Court of Appeal decision in Perreault v. McNeil PDI inc., the Superior Court of Quebec, applying the well-established criteria of 1003 d) CCP – a proposed representative must be in a position to adequately represent the class members – held that the lack of steps taken by the petitioner to identify the class members evidences his inability to represent them adequately.
In this case, the petitioner was unable to name a single member of the class other than himself who would have complained about a deficient Bluetooth system. The Court held that the petitioner must conduct an investigation in order to determine whether a proper class exists. The lack of said investigation leads the Courts to conclude that the petitioner is unable to effectively represent the members of the class.
This case is also interesting because it is one of the rare cases where the court makes a distinction between the efforts of the petitioner and those of his lawyer, and criticises the petitioner for not making his own investigation, relying instead on a few documents his lawyer found online. The trend to date has been to hold that, as long as the petitioner makes himself available to his lawyer and submits to a deposition, it is sufficient. It will be interesting to see whether courts follow the approach taken in the Kia case.
No class, no common questions
Article 1003 a) CCP requires that the recourses of the members raise identical, similar or related questions of fact or law. Although the Court identified common questions that would have met this criteria, it concluded that, since there is no identifiable class, there cannot be any common questions and this criteria is not met.
In essence, the objective identifiable class requirement was read into the class action certification criteria of 1003 a), c) and d) CCP.
An ongoing trend?
In a recent decision of Wilkinson v. Coca-Cola Ltd., dealing with a proposed class action in the food industry, the Quebec Superior Court also refused to certify the class action on similar grounds. In fact, Quebec Courts have, over the last years, refused to certify numerous proposed class actions due to the absence of an ascertainable class.
It remains to be seen whether courts will continue to require proof of the existence of an identifiable class as a criteria implicit in the requirement of article 1003 CCP and whether, as is the case in Ontario, Quebec courts will go even further and require a subjective demonstration of the desire of the members of the class to pursue their claims by way of a class action.