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Quebec class action needs only common question: SCC

|Written By David Dias

Quebec, already the North American jurisdiction of choice for class actions, has just become an even easier place to file such actions. Today, the Supreme Court of Canada upheld the ruling in Vivendi Canada Inc. v. Dell’Aniello, granting pensioners the right to form a class against their former employer.

The Supreme Court has ruled that in Quebec class members only have to share a similar question.

The case involves a September 2008 amendment to Vivendi Canada’s health-care plan, which would have reduced benefits to former employees. Montreal-based Rivest Schmidt, a labour and employment boutique, filed a motion to authorize a class action on behalf of pensioners.

That motion was initially denied by Quebec’s Superior Court, which found the pensioners could not form a class because their issues weren’t similar enough. The court cited, for instance, the individual nature of health-care benefits, which were specific to each pensioner’s condition.

That decision was overturned by the Quebec Court of Appeal, which found the motions judge failed to interpret the province’s Civil Code broadly enough — particularly art. 1003(a), which states that class members must have “identical, similar or related questions of law or fact.”

In a unanimous ruling, the SCC upheld that decision, underscoring the flexibility afforded by Quebec’s Civil Code: “Since the claims of all the group’s members are based on the Plan, the question of the validity or the legality of the 2009 amendments arises for all the members. The answer to this question can serve to advance the resolution of all the claims. Hence, there is a common question.”

Claude Tardif, a litigator at Rivest Schmidt, represented class members before the court. “It’s a very big victory for my client,” he says. “These are people who are a bit older and they needed an answer quickly because [it could affect their estates].”

In Tardif’s opinion, the motions judge failed to appreciate certain key differences between Quebec and common law jurisdictions in terms of how common classes are identified.

Whereas common law jurisdictions focus on nuanced concepts such as “common interests” or “common issues,” Quebec’s Civil Code offers a simpler test in that class members must only share a similar, albeit significant, question — in this case, whether the amendment to their pension was legal.

“The Superior Court didn’t give any specificity to the Quebec law in regard of the other provinces in Canada,” he says. “The terms are not exactly the same, and the Supreme Court recognized it.”

Tardif says it’s too soon to tell whether the ruling will extend to securities class actions, but he thinks the decision will generally make it easier to file collective litigation in the province.

Asked whether that will push Quebec further out of step with North American class action law, Tarfdif says the province has no need to emulate common-law jurisdictions.

“It will be, I believe, easier, but that’s okay, because it will be the proper application of the law,” he says. “Quebec started with collective actions before [other jurisdictions]. We were the predecessors. And maybe it’s time that we recognize that we are different in some criteria. We are more flexible.”

The Supreme Court today also granted leave to appeal in the right-to-die case, Carter v. Canada.

Lee Carter, now deceased, had suffered from an intractable, progressive disease. She joined with others in bringing a civil claim before the B.C. Supreme Court challenging the constitutionality of the Criminal Code provisions against assisted suicide and euthanasia. They succeeded at trial, but were overturned at the appeal court.

“This is a big one dealing with something we will all one day face - how, when and under what circumstances we head for the exit sign,” constitutional lawyer Eugene Meehan told Reuters.

Canada's Supreme Court last considered assisted suicide two decades ago with the case of Sue Rodriguez, who also suffered from ALS.

The Supreme Court majority was a narrow 5-4 in 1993's Rodriguez v. British Columbia (Attorney General) that ruled nobody could legally assist in another's death, regardless of terminal illness, pain, prolonged suffering or an expressed wish to die. Current Chief Justice Beverley McLachlin dissented in that decision.


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