On March 23, 2015, the Superior Court of Québec (per Justice Pinsonnault) granted a motion by Defendant Target Corp. to dismiss a proposed class action related to the 2013 data breach. Justice Pinsonnault dismissed the proposed class action on the grounds that the Courts of Québec lacked jurisdiction.

The Court of Appeal (Target c. Zuckerman, 2015 QCCA 189) has now overturned the dismissal and sent the matter back before the Superior Court for a determination on the question of whether the class action should be authorized.  By decision dated November 6, 2015, the Court of Appeal (per Justices Bich, Savard and Schrager) ruled that the dismissal for lack of jurisdiction was improper and the motion for authorization must be heard.

Specifically, the Court of Appeal found that the Superior Court ought not to have contemplated the sufficiency of the damages claimed in assessing whether the Court had jurisdiction under article 3148 of the Civil Code of Quebec. The Court of Appeal also ruled that the Petitioner’s allegation that he paid for a credit monitoring service (despite the offer by Target to provide this itself) constituted a prejudice suffered in Quebec, which was sufficient to ground jurisdiction of the Quebec Courts.

Perhaps most significantly, the Court of Appeal held that the concept of “proportionality” articulated in article 4.2 of the Quebec Code of Civil Procedure was improperly considered.  The Superior Court judge had properly expressed the rule (clarified by the Supreme Court of Canada in Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1 (CanLII), paras. 64-68). that proportionality is not a separate, fifth, criterion of authorization of a class action. However, the Court of Appeal found that the Superior Court had improperly considered the question of proportionality in the context of its assessment of jurisdiction.

Interestingly, the Court of Appeal reserved Target’s right to raise forum non conveniens arguments anew, at the authorization hearing… Like all good stories, this one is to be continued!