Quebec stands alone in the Canadian common law legal landscape with a French-inherited legal system inspired by the Napoleonic Code. Unsurprisingly, Quebec’s class action regime differs from that of the jurisdictions surrounding it.
Quebec’s class action filtering phase is referred to as the “authorization,” a process by which a proposed claim that does not formally exist is analyzed to be authorized (or not) to proceed as a class action. The authorization phase is a screening mechanism seeking to ensure that defendants do not have to defend against untenable or frivolous claims. The burden is low, with Quebec often being seen as a class action-friendly jurisdiction. Once the four authorization criteria discussed below are met, the court must authorize the bringing of the class action, having no residual discretion and any doubt favouring the plaintiff.
The first criterion is whether the class members’ claims raise identical, similar, or related questions of law or fact. The underlying test is whether a class action will avoid duplication of fact-finding or legal analysis.
Common issues do not have to predominate. A single common issue suffices if it can significantly move forward the class members’ claims. The answer to the common issue does not need to be common for everyone to the extent that all members benefit from the action and that there is no conflict within the class.
The second criterion is whether the facts alleged seem to justify the conclusions sought. The factual allegations of the claim are to be taken as true. The plaintiff does not have to prove the justness or correctness of its suit.
The third criterion is whether it would have been difficult for the members of the class to have joined in the same suit or conferred a mandate to a representative to act on their behalf. This criterion is best described as demonstrating that there are a sufficient number of class members.
The last criterion is whether the representative plaintiff is in a position to adequately represent the class. This test is met if the proposed representative has the required legal interest to sue, has the required qualifications, and is free of conflicts of interest.
The authorization is usually assessed based on a limited evidentiary basis, Quebec law not providing for the filing of motion records, affidavits, or expert reports at the authorization stage. To the contrary, the defendant has to seek leave to file evidence, which will be granted only if relevant to either of the authorization criteria.
The authorization of a class action is thus not exceptional in Quebec. Conversely, a judgment authorizing a class action is not determinative on the defendant’s rights and grounds of defence and is not indicative of the plaintiff’s likelihood of success.
For years, Quebec was infamously known for its “asymmetrical” right of appeal. A judgment denying the authorization to institute a class action was appealable de plano by the plaintiff, but a judgment authorizing a class action could not be appealed by the defendant. This imbalance has been partially corrected since January 2016 with the enactment of the new Code of Civil Procedure providing the defendant with a long-awaited right of appeal with leave of a judgment authorizing a class action.
Another significant change relates to class membership. Historically, class membership was only available to individuals or entities having fewer than 50 employees, entailing that entities could never be part of a class. This barrier has been lifted, opening class membership to anyone.
Finally, new provisions relating to international lis pendens and the conduct of multijurisdictional class actions are granting the court extended powers to ensure the best interests of Quebec class members are taken care of when facing competing class actions in other jurisdictions.
Quebec class action activity has been steadily on the rise for the past few years. Although Quebec’s new Code of Civil Procedure is not overhauling the authorization test and threshold, it will provide for interesting developments in class actions in Quebec.
Vincent de l’Étoile is a partner at Langlois Lawyers LLP in Montreal.