Appeal on Leave From Judgment Authorizing a Class Action – A Rebalancing of Parties' Rights?

When the Act respecting the class action was adopted in 1978,¹ both plaintiff and defendant could appeal, as of right, from a judgment on an application for authorization to institute a class action. In 1982, the defendant’s right to appeal from a judgment authorizing a class action was withdrawn, but the right to appeal from a judgment refusing to authorize a class action was upheld. Recognizing the result of an imbalance created between the parties, but with a view to maintaining control over appeals, the legislator, when reforming the Code of Civil Procedure, decided to reintroduce the possibility of appealing from a judgment authorizing a class action. However, the legislator made such a possibility subject to obtaining leave. The plaintiff retained its appeal as of right from a judgment refusing the authorization to institute a class action.

In Centrale des syndicats du Québec v. Allen,² the Québec Court of Appeal ruled on the applicable test for leave to appeal from a judgment authorizing a class action. According to the Court of Appeal, such a right of appeal must be reserved to "exceptional cases," so that the applicable test must be robust.³ Thus, the Court of Appeal held that leave to appeal from a judgment authorizing a class action can only be granted to the extent that the judgment, on its very face, shows that there is a material error regarding the interpretation of the authorization criteria or regarding the assessment of the facts relating to those criteria. The Court of Appeal also indicated that it would be possible to grant leave to appeal in the case of blatant incompetence of the Superior Court.  

In formulating such a rigorous test, it is clear that, despite the intention of the legislator, the reform of the Code of Civil Procedure does not seem to have allowed the rebalancing of the parties' rights.

What You Need To Know

• The test for granting leave to appeal from a judgment authorizing a class action pursuant to article 578 of the new Code of Civil Procedure is very robust. Leave to appeal from a decision authorizing a class action is limited to the following cases:

• The authorization judgment shows, on its very face, a material error regarding the interpretation of the authorization criteria;
• The authorization judgment shows, on its very face, a material error regarding the assessment of the facts relating to the authorization criteria; or
• The authorization judgment demonstrates the presence of blatant incompetence of the Superior Court.⁴

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¹ S.Q. 1978, c. 8.

² 2016 QCCA 1878 (Allen).

³ Allen, paragraphs 57 and 58.

⁴ Allen, paragraph 59; Énergie éolienne des Moulins, s.e.c. v. Labranche, 2016 QCCA 1879, paragraph 8; DuProprio inc. v. Fédération des chambres immobilières du Québec (FCIQ), 2016 QCCA 1880, paragraph 7.

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