In a decision rendered on May 23, 2019, the Honourable Chantal Lamarche of the Superior Court of Quebec dismissed an application for authorization to institute a class action in Dupont-Rachiele c. Société de transport de Montréal, 2019 QCCS 1941, on the basis that a conflict of interest disqualified the plaintiff to be an appropriate class representative.

The plaintiff instituted a class action against various Quebec public transport providers, alleging that asking consumers to pay for a renewal of their OPUS card amounted to a violation of section 187.3 of the Quebec Consumer Protection Act. Under this provision, “[s]ubject to any applicable regulations, any stipulation providing that a prepaid card may expire on a set date or by the lapse of time is prohibited unless the contract provides for unlimited use of a service.”

The Court acknowledged that the plaintiff had a valid personal claim, a sufficient interest, and that she demonstrated the requisite competence to act as the class representative. Nonetheless, the Court held that the plaintiff was not an appropriate representative due to the sequence of events prior to the filing of the application that caused the court to question her “true interest” in the litigation, the existence of a conflict of interest with class counsel (who was her sibling), and the failure to disclose this conflict of interest to potential class members.

Sequence of events prior to the application

On February 2, 2018, a Montreal newspaper reported that the STM denied being subject to the Consumer Protection Act, and that it argued that the OPUS card was not a prepaid card. One week later, the plaintiff renewed one of her old OPUS cards, as she currently used a monthly student pass. She added a single ticket. The Court described the process as [TRANSLATION] “opportunistic and specifically aimed at acquiring a personal interest in undertaking the action, which suggests that the objective pursued is a personal gain and thus creating a serious doubt as to her true interest.”

Existence of a conflict of interest and the failure to disclose it

The application also failed to disclose that class counsel was the plaintiff’s sibling. This conflict of interest was compounded by the fact that, during the plaintiff’s testimony, class counsel objected to questions pertaining to their relationship and their fee agreement. The Court decided that this relationship constituted a conflict of interest. The Court underlined that it was not the first time that the Superior Court of Quebec had concluded that it would be problematic for a lawyer to act for a class represented by a family member. In the past, the Quebec Court of Appeal had also dismissed an application for authorization to institute a class action because of a conflict of interest between the plaintiff and the acting lawyer.

Ultimately, the Court concluded that the facts of this case did not constitute a mere [TRANSLATION] “possibility of conflict”, as stated by the Supreme Court of Canada in the Infineon decision. As a result, the Court decided the plaintiff was in no position to act as representative plaintiff and dismissed the application for authorization.

At the time of writing, the plaintiff had not filed an appeal of this decision.