In February 2019, the McGill Chapter students to the Quebec branch of the Canadian Bar Association welcomed IMK’s Me Eleni Yiannakis, Me Jean-Michel Boudreau and Me Mouna Aber on a bilingual panel titled “Class Action Litigation: Learning from the Experts at IMK.”
In 1978, Quebec became the first province in Canada to enact legislation recognizing class actions as a procedural option. A class action, as recognized in Article 571 of Quebec’s Code of Civil Procedure (CCP), is a legal action that allows a person to bring a case to court on behalf of a defined group of people who have the same problem. Also in 1978, as a response to the high-risk nature and significant upfront investment of contingency fee arrangements typical of class action litigation, the Quebec government established the Fonds d’aide. The Fonds d’aide is a public body that provides financial assistance and legal information to individuals wishing to institute a class action.
In Quebec, the Superior Court authorizes proposed claims by ensuring that they meet four conditions listed in Article 575 CCP. The authorization test is used by judges as a filtering mechanism meant to ensure that proposed claims are not frivolous or untenable. The test specifically looks at whether: (i) the claims of the members raise identical, similar or related questions of law or fact; (ii) the facts alleged seem to justify the conclusions sought; (iii) the composition of the class makes joinder difficult or impracticable; and (iv) the proposed representative is in a position to properly represent the members of the class. Decisions by the Supreme Court of Canada, particularly in Vivendi Canada Inc. v. Dell’Aniello (2014) and in Infineon Technologies AG v. Option consommateurs (2013), have set an overall low threshold for the test. The increasingly low threshold to obtain authorization is the primary reason Quebec has earned the reputation of being a class action haven.
Over the past decade, and especially after Vivendi and Infineon, the number of class actions filed in Quebec annually has doubled. The Quebec Court of Appeal in Charles c. Boiron Canada inc. (2016) and Sibiga c. Fido Solutions inc. (2016) confirmed the idea that judges have little discretion to refuse authorization. In 2018, as a result of the lenient approach and the increasing number of applications for authorization, the Superior Court developed a Class Action Chamber composed of a team of eleven judges who hear all applications for authorization. The purpose of the Class Action Chamber is to make the procedure more formalized and efficient.
Class actions are recognized as contributing to three social functions: (i) deterring and modifying unlawful behavior by actual and potential wrongdoers, (ii) providing greater access to justice; and (iii) enhancing judicial economy. While some class actions have the potential to provide real societal benefits by offering truth and compensation, others may be relatively de minimis. One notable example that demonstrates the potential of class actions for widespread social good is the LGBT Purge case. The LGBT Purge refers to the Canadian government's systematic campaign between the 1950s and 1990s to investigated, discriminate and purge homosexuals, and those suspected of being homosexual, from the Canadian Armed Forces, the Department of National Defence, and other public service positions. The apology from Prime Minister Justin Trudeau on behalf of the federal government of Canada, combined with the $145 million settlement, demonstrates the extent to which a class action may have a positive and wide-reaching social function. However, the court has also authorized rather inconsequential class actions, such as one brought by a customer against Sunwing Vacations on behalf of all Quebec consumers alleging misleading marketing practices after the company served him sparkling wine in a plastic cup as opposed to champagne in a glass.
Not every class action carries the significance of the LGBT Purge case, yet they remain an essential procedural tool and have been widely welcomed by the Quebec judiciary. The extensive, inclusive and powerful reach of class action lawsuits make them a modern success in Quebec litigation.