APPEAL DISMISSED

L’Oratoire SaintJoseph du MontRoyal v. J.J., 2019 SCC 35

Civil procedure — Class action — Authorization to institute class action — Applicable period for instituting action

On appeal from a judgment of the Quebec Court of Appeal (Gagnon, Marcotte and Healy JJ.A.), 2017 QCCA 1460, setting aside a decision of Lanctôt J., 2015 QCCS 3583.

J alleged that he had been sexually abused by two members, since deceased, of the religious community known as the Congregation of Holy Cross when he was attending Notre‑Dame‑des‑Neiges elementary school and when he was an altar boy at St. Joseph’s Oratory of Mount Royal. He applied for authorization to institute a class action on behalf of victims of sexual assaults that were alleged to have been committed in various institutions in Quebec by brothers and fathers who were members of that religious community. As defendants, J designated Province canadienne de la Congrégation de Sainte Croix (“Congregation”) and Oratoire Saint‑Joseph du Mont Royal (“Oratory”). The Congregation contested the application for authorization on the basis that it could not be held liable for acts that were for the most part alleged to have been committed before it was incorporated, and the Oratory did so on the basis that it had no connection with the religious community known as the Congregation of Holy Cross. In addition, both the Congregation and the Oratory were of the view that J’s personal action was irreparably forfeit as a result of art. 2926.1 para. 2 of the Civil Code of Québec (“C.C.Q.”). The Superior Court found that none of the conditions for authorization set out in art. 575 of the Code of Civil Procedure (“C.C.P.”) were met and refused to authorize the institution of the class action. The Court of Appeal reversed that judgment and authorized the institution of the class action against the Congregation and the Oratory.

Held (Wagner C.J. and Gascon and Rowe JJ. dissenting in part and Côté J. dissenting): The appeals should be dismissed.

Per Abella, Moldaver, Karakatsanis, Brown and Martin JJ.:

The Court of Appeal’s decision to authorize the institution of the class action against both the Congregation and the Oratory is not tainted by an error that justifies a review, and there is nothing that would justify the Court in reversing that decision. The judgment in which the Superior Court denied authorization to institute a class action against both the Congregation and the Oratory is tainted by numerous errors, of fact and of law, in relation to all the conditions of art. 575 C.C.P. It was therefore open to the Court of Appeal to intervene and to substitute its own assessment with regard to those conditions for that of the Superior Court judge. Finally, Gascon J.’s analysis on the subject of art. 2926.1 C.C.Q. is agreed with: J’s personal action is neither forfeit nor prescribed. The second paragraph of that article does not create a term for forfeiture (délai de déchéance).

Article 571 para. 1 C.C.P. defines the class action as a procedural means enabling a person who is a member of a class of persons to sue on behalf of all the members of the class and to represent the class. Article 574 para. 1 C.C.P. provides that prior authorization of a court is required for a person to institute a class action. At the authorization stage, the court plays a screening role and must simply ensure that the applicant meets the four conditions of art. 575 C.C.P. If the conditions are met, the class action must be authorized. The court will consider the merits of the case later. This means that the application judge is ruling on a purely procedural question. The Court has given a broad interpretation and application to the conditions of art. 575 C.C.P.

The Court of Appeal’s power to intervene is limited when it hears an appeal from a decision on an application for authorization to institute a class action, and it must show deference to the application judge’s decision. The Court of Appeal will therefore intervene only if the application judge erred in law or if the judge’s assessment with respect to the conditions of art. 575 C.C.P. is clearly wrong. If the application judge has made such an error with respect to any of the four conditions, the Court of Appeal can substitute its own assessment, but only for that condition and not for the others. Moreover, the application judge’s role is limited at the authorization stage. An application judge who oversteps the bounds of his or her screening role and imposes an excessive evidentiary threshold requirement on the applicant or considers the merits of the case makes an error of law warranting the Court of Appeal’s intervention.

In this case, given the numerous errors made by the Superior Court judge with respect to all the conditions of art. 575 C.C.P., the Court of Appeal was right to substitute its own assessment for that of the application judge with respect to all those conditions. The Superior Court judge had erred in law in considering the condition of commonality of issues set out in art. 575(1) by emphasizing the differences between the class members rather than acknowledging that there was at least one common question stemming from the fact that all the class members were alleged to be victims of members of the Congregation. On the condition of sufficiency of the alleged facts set out in art. 575(2), when the judge found that no specific, tangible facts were alleged in the application and discounted certain of the exhibits in the record, he clearly overstepped the bounds of his screening role by considering the merits of the case. As for the condition of J’s status as representative plaintiff set out in art. 575(4), the judge clearly erred in concluding that the leading role played by J’s lawyers in bringing the application for authorization was inconsistent with his status as representative plaintiff. The judge also erred in faulting J for not personally having taken any steps to verify the institutions where assaults were alleged to have taken place and the number of people in the proposed class. What is more, this error influenced the judge’s analysis with respect to other conditions such as that of the composition of the class set out in art. 575(3).

Next, the Court of Appeal’s decision to authorize the class action against both the Congregation and the Oratory is not tainted by an error that justifies a review with respect to the conditions of commonality of issues (art. 575(1)) and sufficiency of the alleged facts (art. 575(2)), the only ones the Oratory contests in the Court. As for the Congregation, there is agreement with Gascon J., who dismisses the Congregation’s appeal.

Article 575(1) C.C.P. provides that a class action cannot be authorized unless the court finds that “the claims of the members of the class raise identical, similar or related issues of law or fact”. This is the condition of commonality of issues. There is no requirement of a fundamental identity of the individual claims of the proposed class’s members: a single identical, similar or related question of law would be sufficient to meet this condition provided that it is significant enough to affect the outcome of the class action. The fact that the situations of all members of the class are not perfectly identical does not mean that the class does not exist or is not uniform. Nor is it necessary for each member of the class to have a personal cause of action against each of the defendants.

This condition is met in this case: there are similar or related issues. J’s personal cause of action against the Oratory is primarily based on it being directly liable for assaults allegedly committed at the Oratory. All the common issues identified by J actually related to the question whether the Oratory and the Congregation were negligent toward sexual assault victims. J alleges, among other things, that the Oratory knowingly and consciously chose to ignore the issue of sexual abuse by members of the Congregation at the Oratory. For a legal person such as the Oratory, to be aware of sexual abuse can mean only one thing: the Oratory’s directors were aware of the abuse. Given that the Oratory’s affairs were managed in whole or in part by the Congregation’s members, the allegations relating to direct liability of the Oratory are actually allegations relating to faults of members of the Congregation acting as directors of the Oratory. The question of faults allegedly committed by the Congregation’s members is undeniably one that is common to all the members of the class. This means that any finding of direct liability of the Oratory will advance the action of each member of the class, particularly in that it will tend to establish the existence of systemic negligence within the Congregation in relation to the alleged sexual abuse of children by its members.

Article 575(2) C.C.P. provides that the facts alleged in the application must “appear to justify” the conclusions being sought. This is the condition of sufficiency of the alleged facts. At the authorization stage, the role of the judge is to screen out only those applications which are frivolous, clearly unfounded or untenable. The applicant’s burden is to establish an arguable case in light of the facts and the applicable law. This is a low threshold. The legal threshold requirement is a simple burden of demonstration that the proposed legal syllogism is tenable: the applicant must establish a good colour of right. The evidentiary threshold requirement falls comfortably below the standard of proof on a balance of probabilities. The applicant is not required to show that the claim has a sufficient basis in fact.

Furthermore, at the authorization stage, the facts alleged in the application are assumed to be true, so long as the allegations of fact are sufficiently precise. Where the allegations are not sufficiently precise, they must absolutely be accompanied by some evidence in order to form an arguable case. It is in fact possible for the evidence submitted in support of the application to contain concrete, specific or tangible facts that could be used to establish an arguable case even though the allegations in the application seem to be vague, general or imprecise. A court that must determine whether an applicant has shown an arguable case must consider the allegations in the application in light of all the evidence.

In this case, J has met the evidentiary and the legal threshold requirements under art. 575(2) C.C.P. The seeming vagueness, generality or imprecision of J’s allegations in the application must be assessed in light of the context of the application and the evidence presented in support of it. That context involves incidents that occurred when J was a child. The fact that nothing was reported at the time of the events explains why no concrete, specific or tangible allegations of fact are made in the application itself. What is more, J’s seemingly general allegations of fault against the Oratory are not being made in the abstract, but are supported by some evidence. His personal cause of action is founded on the Oratory’s direct liability for assaults that are alleged to have been committed at that place by a member of the Congregation whom the Oratory had made one of the essential players in one of the central activities for which the Oratory was responsible. In addition, the Oratory’s directors, who themselves were all members of the Congregation, knew or ought to have known about the assaults that are alleged to have been committed at the Oratory by members of the Congregation. The Congregation is hidden behind the Oratory, and this is definitely something that may be taken into consideration in law in order to impute direct liability to the Oratory. In light of some evidence that has been produced, an argument that the Oratory may have breached its duty to protect its altar boys is not frivolous, clearly unfounded or untenable. The allegations made against the Oratory and those made against the Congregation in J’s application and the exhibits filed in support of it simply cannot be distinguished in any way that would be legally relevant. Lastly, the fact that other defendants could possibly have been sued but were not cannot release the Oratory from its liability for assaults allegedly committed at the Oratory.

Per Wagner C.J. and Gascon and Rowe JJ. (dissenting in part):

J’s remedy is neither forfeit nor clearly prescribed under art. 2926.1 C.C.Q. The class action against Province canadienne de la Congrégation de Sainte-Croix (“Congregation”) should not be dismissed at the stage of the application for authorization. The application for authorization against Oratoire Saint‑Joseph du Mont‑Royal (“Oratory”) should be dismissed, however.

The first paragraph of art. 2926.1 C.C.Q. provides that an action for damages for bodily injury resulting from an act which could constitute a criminal offence is prescribed by 10 years. That period becomes 30 years if the injury results from, among others, sexual assault. One of these periods begins running on the date the victim becomes aware that his or her injury is attributable to such an act. The second paragraph provides that if the victim or the author of the act dies, “the prescriptive period . . . is reduced to three years . . . from the date of death”, provided that the period has not already expired. This paragraph does not create a term for forfeiture — art. 2926.1 C.C.Q. is in its entirety an integral part of the scheme of prescription, and the second paragraph is no exception to that.

In Quebec civil law, the forfeiture of a remedy cannot be presumed. Indeed, art. 2878 C.C.Q. states that forfeiture results only where expressly provided for in a text. And where there is a doubt or ambiguity, a specified period must be interpreted as a prescriptive period. Neither the words of the second paragraph of art. 2926.1 C.C.Q. nor its context or its underlying objectives lead to the conclusion that there was a clear, precise and unambiguous intention to adopt a term for forfeiture that will apply should the author of the act die. The provision contains no express and unequivocal language relating to forfeiture, and the words of the second paragraph refer to the prescriptive periods in question in the first paragraph. The proposition that a three‑year period is intrinsically short is erroneous. By reducing the period in question to three years, the legislature has simply restored the general law prescriptive period that applies under art. 2925 C.C.Q. The explanatory notes for the Act to amend the Crime Victims Compensation Act, the Act to promote good citizenship and certain provisions of the Civil Code concerning prescription (“amending Act”) — by which art. 2926.1 C.C.Q. was enacted — and the consequential amendments to, among others, art. 2905 C.C.Q. — pursuant to which prescription no longer runs against a minor for an act which could constitute a criminal offence — confirm this interpretation. Lastly, the addition of art. 2926.1 at a specific place within the framework of the C.C.Q., that is, in Book Eight on prescription, is a further indication of the legislature’s intention regarding the meaning to be given to this particular provision.

Moreover, the adoption of a term for forfeiture would clearly frustrate the amending Act’s objective of facilitating access to civil justice and would have consequences that are illogical or even absurd. A victim whose assailant died could no longer submit that it had been impossible for him or her to act, given that such a term cannot be suspended or interrupted. The victim would then have a maximum of three years from the date the author of the act died to institute an action, even if the injury had not yet appeared. The effect of such an interpretation is that an action for damages for bodily injury for an act to which art. 2926.1 C.C.Q. applies would be subject to stricter rules than an action for damages for an injury that is not attributable to an act which could constitute a criminal offence. Finally, under the amending Act’s transitional provisions, the periods — and their starting point — provided for in art. 2926.1 are of immediate application because they are declaratory. The effect of the adoption of a term for forfeiture would be that if a victim’s assailant died before the amending Act was enacted, his or her right of action would be retroactively forfeit three years after the assailant’s death, even if the victim’s action was not prescribed before that Act came into force.

Under art. 2926.1 para. 2, the death of the victim or the author of the act merely changes the length of the period, not its starting point, which continues to be when the victim becomes aware of the connection between the assault and the injury. It is clear from the record of the legislative debate that this second paragraph does not introduce a new period: the death simply changes the period provided for in the first paragraph by reducing it to three years. By providing that the second paragraph applies if one of the principal protagonists dies, the legislature ensured a proper balancing of the interests affected by the lengthy prescriptive period, such as uncertainty with respect to the property of the succession and the integrity of the adversarial process, without diminishing the objective of facilitating access to justice for victims. Furthermore, the amending Act’s transitional provisions state that the provisions concerning the starting point of the prescriptive periods provided for in art. 2926.1 C.C.Q. are declaratory. Thus, the effect of finding that the death of one of the principal protagonists is a distinct starting point would be that the right of action of a victim whose assailant died more than three years before the amending Act came into force would be extinguished retroactively.

The reduction of the period provided for in art. 2926.1 para. 2 applies only in relation to the succession of the victim or to that of the author of the act. Under the general rules of civil liability, the victim’s remedy against a third party who is liable for his or her own fault or for the act or omission of another person is not dependent on the direct remedy against the author of the act. Prescription is determined for each action individually. Any other conclusion would clearly frustrate the purpose of facilitating access to civil justice for assault victims and would allow parties who may be at fault to go on with their lives without liability.

In this case, the starting point of the applicable period was the time when J became aware of the connection between the assaults and his injury, not the date of death of his alleged assailants. Exactly when he became aware of the connection and how this might have affected the applicable prescriptive period will be determined at the trial on the merits. At the authorization stage, despite the fact that the alleged acts occurred more than 30 years ago, J’s allegation that he did not become aware of that connection until 2011 must be assumed to be true.

The class action against the Congregation should not be dismissed at the stage of the application for authorization. At this stage, the court’s role is to screen applications in order to filter out any that are frivolous and to ensure that parties are not being forced to defend against untenable claims. The evidentiary threshold that must be met in order to determine whether each of the conditions set out in art. 575 C.C.P. is satisfied is a low one at this preliminary stage. It will suffice for the applicant to show an arguable case in light of the facts and the applicable law. For an arguable case to be established, however, more than vague, general or imprecise allegations are required. The allegations and the exhibits filed in support of them, when considered as a whole, establish an arguable case against the Congregation. Although the Congregation was constituted only in 2008, the exhibits in the record show that a number of the Congregation’s establishments have used the appellation “Sainte‑Croix” in one form or another over the years. Moreover, the Congregation has not argued that the alleged assailants might have been part of a religious community other than the one it represents. And in 2009, the Congregation had agreed to take up the interest of other entities in the context of a settlement flowing from another application for authorization in relation to alleged sexual abuse by members of the Congregation. On that occasion, the Superior Court had found that all the conditions for authorization were satisfied and had authorized the institution of the class action for the purpose of approving the settlement. In this case, it will be for the parties to address the Congregation’s corporate structure at the trial on the merits and to make whatever complete submissions they consider appropriate at that time. The colour of right condition of art. 575(2) C.C.P. is satisfied: the application for authorization against the Congregation is neither untenable nor frivolous.

However, the allegations in the application and the exhibits filed in support of them do not support a cause of action in liability against the Oratory, an entity distinct from the Congregation. In this case, no facts, either alleged or found in the exhibits, support a rigorous deductive reasoning that involves more than mere assumptions and speculations.

Regarding the direct fault alleged against the Oratory, the allegations consist of conclusions of fact without any factual underpinning, of legal arguments, or of opinions. Unlike in the Congregation’s case, no other allegation in the application and none of the exhibits filed in support of the allegations lend credence to these general allegations, which have no factual underpinning. There is nothing that illustrates how the Oratory’s acts or omissions allowed the assaults to occur or facilitated them or that supports the allegation that a representative or employee of the Oratory tried to conceal the assaults. Nor does the argument that any allegation made or evidence adduced against the Congregation can also apply to the Oratory because the Congregation, through some of its members, is alleged to have helped found the Oratory establish the necessary legal syllogism in the absence of specific and tangible allegations of negligence on the Oratory’s part or of the existence of a relationship of subordination between it and the members of that religious community.

As for whether the Oratory is liable, as principal, it was necessary to allege, at a minimum, that members of the Congregation were subordinates of the Oratory who had committed faults in the performance of their duties. There is quite simply no factual support for such a determination either in the allegations or in the exhibits filed in support of them. Simply identifying a physical place belonging to the Oratory as the place at which some of the alleged assaults occurred cannot lead to the conclusion that the Oratory was the principal in relation to the member of the Congregation who allegedly assaulted J.

Because the colour of right condition of art. 575(2) C.C.P. is not met, the action against the Oratory must be dismissed. It is not necessary to consider the condition of commonality of issues (art. 575(1) C.C.P.).

Per Côté J. (dissenting):

The appeal of Province canadienne de la Congrégation de Sainte‑Croix (“Province canadienne”) should be allowed because the Court of Appeal did not show that the application judge’s assessment of the condition for authorization set out in art. 575(2) C.C.P. was clearly wrong. The appeal of Oratoire Saint‑Joseph du Mont‑Royal (“Oratory”) should also be allowed for the reasons given by Gascon J. The application judge’s decision dismissing the application for authorization to institute a class action should therefore be restored in relation to both Province canadienne and the Oratory. However, for different reasons than those given by Gascon J., J’s right of action is neither forfeited nor prescribed under the second paragraph of art. 2916.1 C.C.Q.

An application for authorization to institute a class action will be granted if it meets four cumulative conditions set out in art. 575 C.C.P. This authorization mechanism must not be reduced to a mere formality. In particular, under art. 575(2) C.C.P., the judge must ensure that “the facts alleged appear to justify the conclusions sought”. The burden on the applicant is to show an arguable case, which is equivalent to a good colour of right, and not only to establish that the application is not frivolous or clearly unfounded.

The application judge must be able to infer the proposed legal syllogism from the facts alleged in the application. The legal syllogism must be clear, complete and rigorous. Vague, general or imprecise allegations — as well as mere statements of a legal nature, opinions or assumptions — cannot suffice to establish an arguable case. No evidence can cure the absence of specific factual allegations regarding an essential element of the cause of action. The application judge should confine himself or herself to the facts that are alleged, without trying to complete them.

In the case at bar, it was certainly open to the application judge to conclude that J had not met his burden of demonstrating an arguable case. The facts alleged disclose no cause of action — no legal relationship — between him and Province canadienne. The uncontested evidence adduced by J himself clearly establishes that Province canadienne, as a distinct legal person, did not exist at the time of the alleged events. It was constituted on January 1, 2008 under the Religious Corporations Act and has not been amalgamated or continued. J’s two alleged aggressors died in 2001 and 2004 and thus were never members of Province canadienne. Even if the facts are assumed to be true and the evidence adduced is considered, the application for authorization does not indicate the basis on which Province canadienne could be liable — whether for its own fault or for that of another person — for acts or omissions that occurred before it was constituted. The legal syllogism is flawed or clearly incomplete, if not absent.

The fact that Province canadienne has a religious mission does not allow its juridical personality to be disregarded. Being one of the legal vehicles of a religious community whose history dates back to well before 2008 cannot make it liable per se for acts and omissions committed before it was constituted by members of that community or by other legal entities that may have been connected to that community. The fact that two corporations may be constituted by the same members or by the same religious community is not in itself of any legal consequence. In the instant case, the application for authorization contains no factual allegations relating to fraud, abuse of right or contravention of public order that could possibly justify disregarding or ignoring Province canadienne’s juridical personality under art. 317 C.C.Q. Moreover, even if such allegations had been made, it is by no means clear that an arguable case could have been established on that basis given that Province canadienne did not exist at the relevant time. It therefore could not have taken part in the alleged acts and omissions and, for this reason, be liable for them.

A class action cannot be authorized in relation to a defendant solely on the basis of its close connections with other entities. In addition, in the case at bar, the application for authorization says practically nothing about the corporate identity of Province canadienne and the Oratory and nothing at all about their possible connections with other entities. The fact that Province canadienne took up the defence of other entities for their actions in another case relating to sexual aggressions has little legal significance. The settlement reached in that other case was clearly entered into without prejudice and without any admission, and it suggests that, if faults were committed, entities other than Province canadienne are liable for them. The Superior Court authorized the class action against Province canadienne in that other case solely for the purposes of the settlement; its decision rested on a laconic analysis carried out essentially as a matter of form, which could not be binding on the application judge in the present case.

Province canadienne and the Oratory have not shown that the period established by the second paragraph of art. 2926.1 C.C.Q. is a term for forfeiture. Prescription is based first and foremost on the idea of sanctioning failure to act by a person who has a right to exercise, which explains why there are mechanisms like suspension and interruption that mitigate the rigours of prescription. By contrast, forfeiture is meant to quickly put an end, for all purposes, to the possibility of performing a particular act. Forfeiture is exceptional in nature: it automatically entails the loss of a right even though its holder has done nothing wrong. The legislature has therefore enacted an interpretative provision, the second paragraph of art. 2878 C.C.Q., which states that “forfeiture is never presumed; it results only where expressly provided for in a text”. Although no set formula is necessary, a term for forfeiture can be found to exist only where the legislature has spoken in a precise, clear and unambiguous manner.

The second paragraph of art. 2926.1 states that the shortened period of three years “runs from the date of death”. The wording is clear and explicit: the death of the victim or the author of the act marks a starting point that differs from the one provided for in the first paragraph. The first paragraph codifies the judge‑made rule that prescription does not run against a victim of sexual aggression who is not aware of the connection between that act and the injury suffered. It provides that an action “is prescribed . . . from the date the victim becomes aware” of that connection. It cannot be found from the wording of the second paragraph that the death simply has the effect of shortening the 10‑ or 30‑year period provided for in the first paragraph. The expressions “from the date” in the first paragraph and “from the date of death” in the second paragraph are equivalent, and they both indicate the starting point for prescription. Words used by the legislature are presumed to have the same meaning throughout the same statute. This interpretation is also the most coherent. If the death was not a new starting point but simply had the effect of shortening the period, an action by the victim’s succession might be imprescriptible in some circumstances. The solution the legislature seems to have chosen is a three‑year period that runs from the date of death of the victim or the author of the act, regardless of whether, before that date, the victim made the connection between the act and the injury suffered.

The fact that the three‑year period under the second paragraph is linked to a specific, objective fact that is fixed in time, namely the death of the victim or the author of the act, provides a strong indication of forfeiture. The link to the death suggests that the period in question, unlike a prescriptive period, is not intended to sanction the victim’s negligence. However, it is difficult to argue that the wording of the second paragraphs makes no reference to prescription. The French version refers to the “délai applicable”, which is the 10‑ or 30‑year prescriptive period under the first paragraph. The English version is even more explicit: “the prescriptive period, if not already expired, is reduced to three years”. Therefore, it cannot be concluded from the wording of the provision that the legislature expressed an intention to create a term for forfeiture, rather than a prescriptive period, in a sufficiently precise, clear and unambiguous manner.

Absent an express provision to the contrary, the general provisions dealing with the suspension of prescription — including the provision on impossibility in fact to act (art. 2904 C.C.Q.) — apply to the period provided for in the second paragraph of art. 2926.1 C.C.Q., subject to the following exception. Given that the second paragraph of art. 2926.1C.C.Q. sets a different starting point for prescription, separate from the one established by the first paragraph, lack of awareness of the connection between the alleged act and the injury suffered cannot suspend the period provided for in the second paragraph. The opposite interpretation would frustrate the legislature’s intention that the period run from the date of death, and no longer from the date the victim becomes aware of the connection.

The second paragraph of art. 2926.1 C.C.Q. applies to all actions for damages for bodily injury resulting from sexual aggression. The wording of the provision draws no distinction between the author of the act and third parties who might also be liable for their own fault or for the act or omission of another person. The purpose of this provision is to address the legislature’s concerns about the preservation of evidence and, more broadly, the integrity of the adversarial process.

The starting point under the second paragraph, the date of death, does not have retroactive effect, regardless of whether the period is a term for forfeiture or a prescriptive period. The introduction of a new period does not retroactively extinguish an existing right of action unless such an intention is clearly expressed. This is not the case here. First of all, the amending Act specifically mentions only prescription and contains no transitional provision that could apply to the starting point of a term for forfeiture. Second, if the second paragraph of art. 2926.1 C.C.Q. simply provides for a prescriptive period, s. 13 of the amending Act does not give it any retroactive effect, because the new starting point set on the date of death is not declaratory in nature. The legislature stated in s. 13 that the provisions concerning the starting point for prescription are “declaratory”. A declaratory provision has retroactive effect insofar as it interprets existing law in the way that a judicial decision would. The starting point under the second paragraph, unlike the first paragraph, can hardly be characterized as declaratory given that it is entirely new law that is not meant to settle or clarify existing law. Therefore, the legislature did not express an intention to give it retroactive effect. If there is any doubt in this regard, the interpretation that limits the scope of provisions that are explicitly retroactive or declaratory is to be preferred. Accordingly, whatever the nature of the period under the second paragraph of art. 2926.1 C.C.Q., it would not have begun to run, in relation to existing juridical situations, before the coming into force of the amending Act. As a result, the introduction of a new starting point set on the date of death would not affect J’s right of action in the instant case.

Citation: L’Oratoire SaintJoseph du MontRoyal v. J.J., 2019 SCC 35

SCC File No. : 37855

Reasons for Judgment: Brown J. (Abella, Moldaver, Karakatsanis and Martin JJ. concurring)

Reasons Dissenting in part: Gascon J. (Wagner C.J. and Rowe J. concurring)

Dissenting Reasons: Côté J.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17812/index.do