The Supreme Court of Canada has ruled that a common question of fact or of law must serve to advance the resolution of every class member’s claim, but that does not mean that an identical answer is necessary for all members of the class, or even that the answer must benefit each of them to the same extent. To meet the commonality requirement of article 1003 (a) of the Québec Code of Civil Procedure, the applicant must show that an aspect of the case lends itself to a collective decision and that the parties will have resolved a not insignificant portion of the dispute. It is enough that the answer to the question does not give rise to conflicting interests among the members. In short, at the authorization stage, the approach to be taken to the commonality requirement in Québec civil procedure is a flexible one.
What is more, the Supreme Court has decided that the expression “identical, similar or related questions” found in article 1003(a) of the Québec Code of Civil Procedure is broader and more flexible than the commonality requirement which exists in class action legislation in the common law provinces.
According to the Court, the fact that members of the class may reside in different Canadian provinces should not prevent the court from authorizing the class action. Only substantial differences between the applicable legal schemes would cause the action to lose its collective nature.
Lastly, the Supreme Court decided that the principle of proportionality found in article 4.2 of the Québec Code of Civil Procedure is not a separate fifth criterion. A motions judge cannot rely on the principle of proportionality to refuse to authorize a class action that otherwise meets the criteria.
This case originated with a motion for authorization to institute a class action on behalf of all beneficiaries of a private health insurance plan.
The new employer had unilaterally amended the plan, which led to a class action. The motions judge dismissed the motion on the grounds that there were no identical, similar or related questions of fact or law. The Court of Appeal decision quashing this ruling is now confirmed by the Supreme Court.
Considering this decision and the recent Infineon Technologies AG decision (2013 SCC 59), this begs the question: has the Supreme Court lowered the bar for class action authorization in Québec? No doubt this is what plaintiffs’ lawyers will argue before the Courts.
Read the Court’s decision: Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1
