On August 31, 2015, the Quebec Superior Court in Mouvement d’éducation et de défense des actionnaires (MÉDAC) v. Société financière Manuvie et al.1 rendered an important decision regarding the possibility for a plaintiff in a class action in Quebec to import evidence disclosed in a class action that is proceeding simultaneously in another province.
With the proliferation of multijurisdictional class actions, the rising number of consortiums of law firms acting simultaneously for plaintiffs in various provinces and their increasingly close collaboration, this decision is of particular interest and clarifies the rules and limitations on the filing of documents disclosed in another class action.
In 2009, class actions were filed in both Quebec and Ontario against the same defendants alleging a breach of their disclosure obligations under securities legislation in each of those provinces.
In 2011, the Quebec class action was authorized by the Superior Court of Quebec. The Ontario class action was subsequently certified by the Superior Court of Justice of Ontario in 2013.
While both proceedings involve similar facts and causes of action, the Ontario class action excludes members of the Quebec class. Both class actions are proceeding simultaneously and involve the same class counsel.
The motion for disclosure of documents
In the Ontario proceedings, Manulife had to disclose hundreds of thousands of documents to the plaintiff pursuant to its document discovery obligations.
The plaintiff in the Quebec class action filed a motion seeking an order from the Court that 99,584 of those documents be disclosed to it immediately, and others at a later stage, for the purposes of the Quebec proceedings.
The plaintiff asked the Court to use the extended powers of the case management judge under Article 1045 of Quebec’s Code of Civil Procedure, based on the alleged relevance of the documents and the parties’ interest in having a complete record before the Court.
Superior Court Justice Alicia Soldevia dismissed the motion.
The Court pointed out that the disclosure of hundreds of thousands of documents, without the plaintiff establishing their relevance, would short-circuit the provisions of the Code of Civil Procedure and frustrate the economy of Quebec’s rules of procedure. The Court stressed that the disclosure of documents in Ontario does not necessarily mean that they are relevant to the Quebec proceedings.
The Court noted in particular that Ontario’s rules of civil procedure and the principles pertaining to document discovery provide for the disclosure of documents in a way that differs from that applicable under Quebec’s rules and principles. Basing itself on the decision in Hydro-Québec v. Churchill Falls (Labrador) Corporation Ltd.,2 the Court confirmed that discovery rules in common law jurisdictions cannot be imported into Quebec.
In addition, the disclosure of documents by Manulife in Ontario in no way binds it to admitting their relevance before Quebec courts.
The motion was ultimately found to have not been brought in a timely manner, to be contrary to the interests of justice and the proportionality principle, and would be fundamentally contrary to the agreement as to the conduct of the proceeding3. Ordering such disclosure in Quebec would excessively complicate the case and make the proceedings more cumbersome.
Finally, although the Court emphasized that while it may be in the interest of litigants to have harmonized rules of procedures in multijurisdictional class actions raising similar issues of fact and law, this is something that must be dealt with by the respective legislatures.
This decision sets out specific guidelines for the use of evidence disclosed in parallel class actions.
While the Court did not close the door on the selective disclosure of documents disclosed in proceedings in another jurisdiction in the future, it reaffirmed that the burden is on the party seeking to compel such disclosure to establish the relevance of the documents pursuant to the rules of evidence applicable in Quebec.
Generally speaking, it appears that such documents can in principle be used for purposes other than the litigation in which they were disclosed, provided that their disclosure in Quebec does not violate a rule of law or an order from the court in the originating forum.
While multijurisdictional class actions have come a long way, this decision reminds us of the difficulties they still face on a procedural level. This is certainly an additional element to be taken into account by the parties when dealing with such class actions.