The creation of a new class-action division in the Montreal judicial district that will be devoted to hearing all authorization demands is expected to both speed up and improve the management of cases by a select group of judges who are experienced and interested in that area of law.
But it is also expected to change the way lawyers prepare and practise in the filtering phases of the highly popular civil lawsuits in a jurisdiction that is widely seen as class-action friendly.
Announced by Superior Court of Quebec Chief Justice Jacques Fournier and co-ordinating Judge Pierre-C. Gagnon at a standing-room-only meeting organized by the Barreau du Québec’s decade-old committee on class actions in the provincial regulator’s offices on Jan. 12, the new division will feature a group of 10 judges who will collectively handle all class action filings as of Sept. 1.
If and when filings are authorized, they will be reassigned to the other 63 Superior Court judges who work in Montreal for litigation management.
In a presentation on the new group presented by Justice Gagnon, the justices list a series of motivating factors for introducing the new class action management framework.
Chief among them is the increased workload related to class action suits in Quebec since the enactment of the new Code of Civil Procedure in 2016.
According to the data provided by the justices, 65 new class actions were filed in Montreal in 2017, bringing the total number of active cases (including pre- and post-authorization and at the liquidation stage) to 338.
Of those 338 cases, 155 are in the pre-authorization phase, 100 are in post-authorization, 16 are in appeal, 40 are in liquidation, 37 are suspended and 56 were orphaned.
On average, the 73 Superior Court justices in Montreal handle four or five cases each. However, the varied nature and complexity of those cases, together with regular events among the justices such as retirements, nominations to the Court of Appeal of Quebec and special assignments, have resulted in some cases taking two years or more in the pre-authorization stage.
Adding to the delays is the fact that the justices were dealing with these cases on judge days, which created work overloads, scheduling challenges and limited opportunities to hear from parties.
Those delays in today’s post-Jordan legal environment have drawn sharp criticism from other justices. Court of Appeal of Quebec Judge Marie-France Bich slammed the Superior Court of Quebec’s handling of class action pre-authorization filings in a six-paragraph rebuke in paragraph 69-75 in the 2016 decision in Charles v. Boiron.
To accelerate matters, the group of 10 judges in the new division will take all cases in which authorization has not been decided, which is estimated to be an annual average of 15 or 16 each.
The other group of 63 judges will then manage litigation in one or two authorized cases a year.
“The goal is to streamline the process and point cases to judges who are most comfortable with class actions,” says Jean Saint-Onge, senior counsel with Borden Ladner Gervais LLP and moderator of the January meeting.
He also chairs the Barreau’s committee on class actions, which has been quietly lobbying for the creation of the new division, and organizes Canada’s most high-profile annual conference on the subject, which took place in March in Montreal.
According to Saint-Onge, the 10 judges who have been tapped for the new group are the most experienced Superior Court justices in class action cases in Montreal.
He says several of them, including Donald Bisson, Chantal Chatelain, Gary Morrison and Chantal Tremblay, also worked extensively in class actions before being named to the bench.
“They are the most comfortable with class actions,” says Saint-Onge. The new division, he adds, will help the 10 judges deal with the specific rules of procedure that make the first certification or authorization stage a complex area of law in of itself.
“The growing number and complexity of cross-border and multi-jurisdictional cases means case law is evolving all the time,” says Saint-Onge. “We need judges with an up-to-date, overall picture of class actions and who know the players.”
He says a letter sent to the justices in early February by Quebec Barreau president Paul-Matthieu Grondin that praises the initiative and offers the regulator’s “collaboration to help ensure its success” also reflects the positive reactions he’s heard from Quebec lawyers in the field of class action. “I haven’t heard anything negative,” says Saint-Onge.
For Vincent de l’Étoile, a partner in Langlois’s litigation group, who works almost exclusively defending class actions for large corporate clients in Quebec and across Canada, the new division will almost certainly help the system deal more efficiently and predictably with the increasing number of cases.
But he says there is a risk that over time the 10 judges could develop a stringent jurisprudence that could “do away with the legal intricacies of cases and formulate an approach that will not be applicable to all cases.”
He also believes the advent of the new division — and the fact that the judge will change if and when authorization is granted — means lawyers will likely change their courtroom approach in the pre-authorization stage.
“I think lawyers will feel less a need to build relationships with judges from day one and educate the court by explaining what the case is all about,” says de l’Étoile. “Arguments will likely become more succinct.”