Last spring, the Supreme Court of Canada released a decision adopting a liberal approach to the certification of common issues in class proceedings. Because this case arose out of Quebec, it did not receive widespread attention in the rest of Canada. However, it would be a mistake to let the importance of this case remain un- or under-appreciated.
The SCC re-iterated that the requirements of a class proceeding must be applied in a flexible manner to promote the objectives of class proceedings, and lowered the bar for the certification of common issues across the country.
Vivendi Canada Inc. v. Dell’Aniello arose out of a unilateral amendment made by Vivendi Canada Inc. to a health insurance plan of which it is the sponsor for its retirees and their surviving spouses. The plaintiff filed a motion for authorization to institute a class action in Quebec on behalf of all the beneficiaries of the plan in order to challenge the validity of the amendment.
The motion judge dismissed the motion for authorization to institute a class action on the basis there were no questions that were identical, similar, or related for all the members of the group. His opinion was that too many factors specific to each member had to be considered for one or more of the questions to be decided collectively. The appeal was allowed by the Court of Appeal.
In considering the commonality requirement of the test for certification, the Supreme Court reviewed the principles laid down in Western Canadian Shopping Centres Inc. v. Dutton and Rumley v. British Columbia. In the case of the commonality requirement, the purpose of the analysis is to determine “whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis.”
The Supreme Court also stated that a question can remain common even though the answer to the question could be nuanced to reflect individual claims.
In Vivendi, the SCC took another look at the principles laid down in Dutton and Rumley and decided that an even more flexible approach was necessary to fulfill the objectives class proceeding vehicle.
The court held for the common-issue requirement that “success for one is success for all,” may be met in circumstances where different results may be possible for different class members. In so doing, it adopted new principles in determining whether a question is sufficiently common among class members:
• for a question to be common, success for one member of the class does not necessarily have to lead to success for all the members;
• a common question can exist even if the answer given to the question might vary from one member of the class to another, and a common question may require nuanced and varied answers based on the situations of individual members; and,
• the commonality requirement does not mean an identical answer is necessary for all the members of the class, or even that the answer must benefit each of them to the same extent; it is enough that the answer to the question does not give rise to conflicting interests among the members; success for one member must not result in failure for another.
In this case, since the claims of all the group’s members were based on the plan, the question of the validity or the legality of the 2009 amendments arose for all the members, and the answer to this question could serve to advance the resolution of all the claims. Hence, the SCC found it was a common question.
The Supreme Court’s analysis once again recognized the importance of class proceedings as a vehicle for achieving access to justice, modifying harmful behaviour, and conserving judicial resources, and once again demonstrated that the applicable legislation is a flexible tool to achieve these ends.