The Court of Appeal in Whirlpool Canada c. Gaudette, 2018 QCCA 1206, recently confirmed the decision in the first instance, allowing a consumer group a second chance to bring a class action against Whirlpool and Sears.

Background

The Superior Court had previously dismissed an application to authorize a class action filed by Sylvain Lambert1 (Lambert), which was upheld by the Court of Appeal2 on the basis that Mr. Lambert’s action was prescribed. Mr. Lambert therefore lacked the required characteristics to properly represent the putative class.

A new application to authorize a class action brought by a Mr. Gaudette, another member of the putative class, and which bore an obvious similarity to Mr. Lambert’s action, was then filed in Superior Court. Whirlpool had objected, arguing inadmissibility of the application, res judicata relating back to the preceding class action, as well as abuse of process since Sylvain Lambert should have agreed to the substitution of another class member once he became aware that his suit was prescribed, rather than wasting judicial resources.

The Court of Appeal’s Decision

The Court of Appeal endorsed the holding of the first instance judge and dismissed Whirlpool’s appeal. The Court first found that the preliminary objection dealing with prescription could not apply to the entire class, but only to Mr. Lambert’s personal action. Furthermore, in order for res judicata to apply, it would have been necessary, according to the Court of Appeal, for the argument in court to have dealt with the actual substance of the dispute. In Lambert, however, the Superior Court had not ruled on the merits of the recourse as instituted, but only on the criteria of authorization, which it analyzed in the specific context of Mr. Lambert’s individual action.3 As regards abuse of process, the Court of Appeal was of the opinion that the claim in itself was not characterized by any abuse of procedure and that there was nothing to support the conclusion that the attorney involved had been negligent by not proceeding to find a substitute petitioner.

The Court of Appeal nevertheless did issue a warning to applicants who might be tempted to start re-instituting similar class actions on the rebound, until one of them was finally authorized: it recommended avoiding: [translation] “having to deal, for no legitimate reason, with new applications for authorization on a given point, filed after dismissal of a first application, and amended for the sole purpose of responding to gaps identified by the court”.4 The Court of Appeal also noted that the sound use of judicial resources is a principle that should guide the justice system, especially in the actual class actions framework.

In addition, the Court recommended that for the sake of judicial efficiency, preliminary objections be pleaded at the same time as authorization applications, so that if such objections were dismissed, the court could immediately rule on authorization, thus reducing procedural delays.