Is it Still Possible to Challenge a Class Action in Québec at the Authorization Stage?

In 2016, the Québec Court of Appeal has allowed no less than five appeals from judgments that refused to authorize class actions. In Charles v. Boiron Canada inc.,¹ Sibiga v. Fido Solutions inc.,² Lambert (Gestion Peggy) v. Écolait ltée,³ Blouin v. Parcs éoliens la Seigneurie de Beaupré 2 et 3, s.e.n.c.,⁴ and Masella v. TD Bank Financial Group,⁵ the province’s highest court overturned the decisions of the Superior Court and authorized these class proceedings. These decisions, which follow the Supreme Court of Canada's recent trend of advocating a broad and liberal interpretation of the four criteria for authorizing class actions, once again reduce the burden on plaintiffs in Québec. Although it is still possible to successfully challenge a class action at the authorization stage, it is clear that the number of options for challenging authorizations has once again been reduced.

This is particularly true in the context of consumer law cases. In both Sibiga (related to the allegedly excessive or abusive nature of international mobile data roaming fees charged by wireless telephone service providers to their customers) and Boiron (related to allegedly misleading or deceptive advertising concerning a homeopathic product), the Court of Appeal has lessened the already low burden of proof applicable to the colour of right and to the ability to properly represent class members criteria.

What You Need To Know

• Colour of Right. It is still possible to argue that the plaintiff has failed to establish that he has an arguable case, especially in the absence of some evidence to support the allegations contained in the application for authorization. However, at the authorization stage, the court must not decide the substantive issues in the dispute and must be limited to assessing whether the conclusions sought flow logically from the facts alleged and whether the allegations in the application are sustained by the evidence submitted in support thereof.⁶

• The colour of right criterion should be assessed in light of the proposed representative's personal cause of action.⁷
• If there are contradictory facts between the defendant’s authorized evidence and the facts alleged in the application for authorization or the evidence filed in support thereof, the authorization judge must accept the facts alleged by the plaintiff as proven, unless they seem improbable or obviously inaccurate.⁸
• In proposed consumer law class actions, the plaintiff is not required to submit his/her contract as evidence at the authorization stage in order to demonstrate an arguable case, insofar as the contract is properly alleged, that its existence is not disputed, and that the details of the contractual obligations it provides are not essential for the assessment of whether the conclusions sought by the plaintiff flow logically from the facts alleged.⁹

• Description and Composition of the Class. Despite recent case law, a proposed class that contains a  limited number of members remains solid ground for challenging an application for authorization to institute a class action. Moreover, the only first instance judgment denying such an application that has been affirmed by the Court of Appeal in 2016 has been upheld on this basis: the proposed class only had 12 members, which is insufficient to justify the authorization of a class action.¹⁰ A circular, imprecise or subjective description of the class, as well as the lack of prima facie evidence relating to the existence or composition of the class, are also possible grounds for challenge.

• Representative Plaintiff.

• The appearance of a conflict of interest between the plaintiff and the members of the proposed class remains a valid ground for challenge.
• In class actions outside the consumer law context, it is still possible to oppose an application for authorization on the basis that the plaintiff does not have the competence to act as a representative, especially if no reasonable investigation has been conducted with regards to the existence of the class.
• In consumer law class actions, the requirements relating to the competence of the class members’ representative are (even more) minimal.¹¹ A proposed representative can properly represent class members although the proceedings have been initiated by class counsel.¹²
• The bankruptcy of the plaintiff does not mean that he/she does not possess the interest to act as representative: the plaintiff can represent the class members despite his/her bankruptcy.¹³

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¹ 2016 QCCA 1716 (Boiron).

² 2016 QCCA 1299 (Sibiga).

³ 2016 QCCA 659 (Écolait).

⁴ 2016 QCCA 77.

⁵ 2016 QCCA 24 (Masella).

⁶ Masella, at paras. 7, 9 to 11, 14 and 18; Écolait, para. 40 and 42.

⁷ Écolait, at para. 28.

⁸ Écolait, at paras. 34 to 41.

⁹ Sibiga, at paras. 59 to 63.

¹⁰ Zoungrana v. Air Algérie, 2016 QCCA 1074.

¹¹ Boiron, at para. 55; Sibiga, at para. 109.

¹² Sibiga, at paras. 102 to 104.

¹³ Écolait, at para. 69.