The Québec class action landscape has seen shifting trends lately regarding authorization and preliminary motions. Although the Québec Court of Appeal recently reiterated the low threshold to be applied at the authorization stage, and often overturns refusals by the Québec Superior Court to authorize class actions, judges continue to grant defendants leave to adduce evidence prior to the authorization hearing. This allows us to conclude that authorization and preliminary hearings still serve a purpose in Québec class proceedings.
Authorization of Class Actions while preserving the parties’ efforts and resources
On October 26, 2016, the Québec Court of Appeal overturned the Superior Court decision and authorized the bringing of a class action in the matter of Charles v. Boiron Canada Inc., 2016 QCCA 1716. In doing so, Justice Bich wrote in passing that the test for authorization, as set out in Article 575 of the Québec Code of civil procedure (“CCP”) and recently interpreted by the Supreme Court of Canada, imposes such a low burden on plaintiffs that she questioned whether it is still justified for parties to dedicate such significant resources to this debate.
Justice Bich even expressed her doubts as to whether the authorization process in its present form still has any real utility and invited the legislature to reconsider the usefulness of the authorization step. In the view of Justice Bich, class actions should facilitate access to justice and the current authorization process instead hinders this purpose.
Assisting the Courts in their filtering role at the authorization stage
In light of this recent obiter of Justice Bich, Superior Court judges face the challenging task of ruling on preliminary motions brought by class action defendants entitled to seek leave to adduce relevant evidence and to examine class representatives.
On January 11, 2017, in the matter of A. v. Les Frères du Sacré-Coeur, 2017 QCCS 34, a sexual abuse class action against a religious congregation, Justice Provencher ruled on a preliminary motion for leave to examine class representative and for leave to adduce relevant evidence in the form of various corporate documents of defendants. Justice Provencher granted leave to examine the class representative regarding certain specific topics, and allowed that substantial documentary evidence be adduced by defendants at this stage.
Acknowledging the low threshold at the authorization stage, Justice Provencher remarked that Article 575 CCP has not been abolished and remains applicable, citing with approval his colleague Justice Prévost in the case of Kramar v. Johnsons & Johnson, 2016 QCCS 5296.
In a nutshell, Justice Provencher held that the documentary evidence that defendants wished to adduce – mostly comprised of public corporate documents - must be allowed at the authorization stage given that it is “useful and relevant to the filtering and verification exercise set out in Article 575 CCP”. In fact, he added that where these documents are public and accessible, they should have been adduced by plaintiff to allow a complete understanding of the dispute.
As for the request to examine the class representative, Justice Provencher concluded that the Court would benefit from comprehensive evidence in order to assess whether the class representative is in a position to properly represent the class members – a criterion set out in Article 575 (4) CCP. As the claim’s allegations are vague or incomplete, the examination of the class representative will assist the Court in the exercise of its filtering role at the authorization stage.
The Court’s decision in this case confirms that defendants may continue to seek leave to present useful and relevant evidence where the allegations are, for instance, incomplete, vague or constitute opinion. It will be interesting to see whether there will be a legislative intervention regarding the authorization process as per the invitation conveyed by Justice Bich.