On January 16, the Supreme Court of Canada released its first decision of 2014. The decision inVivendi Canada Inc. v Dell’Aniello addressed a Québec action that sought to be authorized as a class action. Justices LeBel and Wagner wrote the decision jointly and clarified the authorization test for Québec class actions, which is comparable to the certification test in the common law provinces. At the authorization stage, a Québec judge’s function is to screen motions to ensure that defendants do not have to defend against untenable claims.
The action in Vivendi was brought on behalf of beneficiaries of a health insurance plan that had been unilaterally amended by Vivendi. The action seeks to challenge the validity of Vivendi’s amendments, which are adverse to the interests of the only remaining beneficiaries of the insurance plan, being retirees and surviving spouses of former employees. The Québec Superior Court dismissed the plaintiff’s motion for authorization on the basis that the claims of the members of the proposed class did not raise questions that were “identical, similar or related”, as required under the Québec Code of Civil Procedure. The Court noted that there were different rules governing each member’s right to insurance benefits.
However, the Québec Court of Appeal allowed the plaintiff’s appeal and authorized the institution of a class action, finding that there was a question common to the claims of all the members of the proposed class. The question of whether the insurance plan amendments were valid or lawful was a question common to all plan beneficiaries.
Ultimately, the Supreme Court dismissed Vivendi’s appeal, agreeing with the Québec Court of Appeal to find that a common question did indeed exist. The Supreme Court noted that, in all provinces, the common success requirement for a class action must not be applied inflexibly. A common question can exist even if the answer given to the question might vary from one member of the class to another. However, success for one member must not result in failure for another. It is enough that the answer to the question does not give rise to conflicting interests among the members.
The Supreme Court then provided a comparison of the level of commonality required under the Québec authorization test, versus the commonality requirement applied under the certification test in the common law provinces. While the common law provinces require common issues, the Québec legislation requires only similar or related questions. The Court found that Québec’s authorization test in respect of commonality is less stringent than the common law certification requirement of commonality. Québec’s approach to the commonality requirement is often broader and more flexible. In Québec, the authorization test may be met even if the common questions raised by the class action require nuanced answers for the various members of the group.
The Supreme Court also distinguished the authorization test’s “proportionality” principle from the “preferable procedure” requirement in the common law provinces. In Québec, the authorization test does not require the Court to ask whether a class action is the most appropriate procedural vehicle, as required in the common law provinces. Though the Québec authorization test incorporates the proportionality principle throughout, proportionality is not itself a separate criterion necessary for authorization, unlike the preferable procedure requirement in other provinces. When applying the proportionality principle, the Québec Courts must be careful not to indirectly introduce the preferable procedure requirement into the analysis for authorization. Moreover, Québec courts cannot rely on the principle of proportionality to refuse to authorize an action that otherwise meets the authorization criteria established under the Québec Code of Civil Procedure.