On July 2, 2014, the Superior Court of Quebec ruled on a motion for authorization to institute a class action against Fido Solutions Inc., Rogers Communications Partnership, Bell Mobility Inc. and Telus Communications Company (the "Respondents"). The Honourable Justice Michel Yergeau ruled that the Motion for Authorization (the "Motion") did not meet the criteria required under Article 1003 of Quebec's Code of Civil Procedure ("CCP") to authorize the class action. More particularly, the Court notably held that: 1) the facts alleged did not appear to justify the conclusions sought (Art. 1003b)); and that 2) the representative plaintiff, Inga Sibiga, was not in a position to represent the proposed group members adequately (Art. 1003d)).
This decision follows the recent Supreme Court decisions in Infineon Technologies AG v. Option consommateurs[1] and Vivendi Canada Inc. v. Dell'Aniello,[2] which some argued lowered the bar for class action authorization in Québec. Indeed, Infineon reconfirmed that the evidentiary burden provided for by article 1003 CCP is a low one, and that, at the authorization stage, the court is to act only as a "filter" and should not allow the process to become a pre-emptive trial on the merits.[3] However, Justice Yergeau's ruling, which cites both Vivendi and Infineon with approval, demonstrates that while the threshold for authorization is a low one, the criteria set out in 1003 CCP must nonetheless be met. More specifically, the Court must nevertheless ensure that the representative plaintiff has met the required threshold of showing that the facts alleged seem to justify the conclusions sought and that the representative plaintiff is in a position to adequately represent the proposed group - requirements found at arts. 1003 b) and d) CCP.
Background
The Motion for Authorization brought by Ms. Sibiga against the Respondents sought authorization to undertake a class action on behalf of a group comprising of all consumers residing in Quebec who were charged international mobile data roaming fees by the Respondents at a rate higher than $5.00 per megabyte after January 8, 2010.
The facts can be summarized as follows:
Ms. Sibiga had a wireless service contract with Fido. She never entered into a wireless service contract with any other service provider.
Between September 7 and 14, 2012, Ms. Sibiga accessed "Google Maps" on several different occasions after getting lost while on vacation in the United States. Ms. Sibiga decided not to purchase a discounted rate travel plan for international data roaming either before leaving on vacation or after receiving a text message advising her of international roaming charges and allowing her to purchase a travel plan directly from her phone. Ms. Sibiga was thus charged standard pay-per-use rates of $6.14 per megabyte of international data used. She paid her bill without complaint.
On December 18, 2012, Ms. Sibiga received a general solicitation email from the law firm of Trudel & Johnston seeking someone to act as a petitioner for a proposed group. Despite having never complained and having conducted no research on the issue, Sibiga volunteered to act as the representative plaintiff for all members of the proposed group.
Less than one month later, on January 8, 2013, and based on the results of research carried out by her lawyers, and primarily on the Organization for Economic Cooperation and Development's Report on Data Roaming (the "OECD Report"), the Motion was filed with Sibiga designated as the representative. Based on this research, Ms. Sibiga alleged that the international data roaming fees charged by the Respondents were disproportionate and abusive under section 8 of the Consumer Protection Act ("CPA") and art. 1437 of the Civil Code of Quebec ("CCQ").
Decision of the Superior Court
1. Absence of legal Interest
In dismissing the Motion for Authorization, the Court first reiterated the principle established in the leading Court of Appeal case Bouchard[4], which established the necessity at the authorization stage that the representative plaintiff establish a cause of action against each of the respondents named in the action. While the Court recognized that there are cases where a representative plaintiff does not have to justify a cause of action against multiple respondents, for example in cases of complicity or conspiracy amongst respondents or where the cause of action against each respondent can be made without any significant distinction (Regroupement des CHSLD Christ-Roy (Centre hospitalier, soins longue durée) v. Comité provincial des malades, 2007 QCCA 1068; Banque de Montréal c. Marcotte, 2012 QCCA 1396), this does not mean that it is no longer necessary for a representative plaintiff to prove a cause of action against each respondent. The Court made clear that each case must be considered on its own facts. In the present case, there were no facts justifying discarding the general rule established by the Court of Appeal in Bouchard. The Court thus held that Ms. Sibiga did not have sufficient legal interest to bring the proposed class action against either Bell or Telus since she had neither entered into a contract with either Respondent, nor was she was aware of the international roaming services they offered.
2. The facts alleged did not appear to justify the conclusions sought (Art. 1003b))
In this regard, the Court held that Motion failed to set out the essential facts justifying the conclusions sought. The cause of action invoked by the Petitioner - that all Roaming Fees higher than $5.00 per megabyte are disproportionate under section 8 CPA and abusive under art. 1437 CCQ - was determined not to be evident from the alleged facts and adduced evidence. First, Ms. Sibiga failed to produce her wireless contract with Fido, making any demonstration of a disproportion or abuse between the parties' respective obligations impossible to establish or even consider. Moreover, the Court held that the evidence which was adduced, and particularly the OECD Report's findings on international data roaming fees, was not comparable to Ms. Sibiga's case. The Court held that conclusions drawn therefrom amounted to mere inferences and hypotheses. The Court found that allowing this class action to proceed would amount to an inquiry into the entire telecommunications industry—a class action simply cannot be used for such a purpose. In short, the Court ruled that the facts alleged did not justify either the proposed group or the conclusions sought in the Motion and thus failed to meet the threshold established under art. 1003 b) CCP.
3. Ms. Sibiga was not in a position to represent the members adequately (Art. 1003d))
In addition, and while the Motion could have been dismissed solely based on the Court's findings under art. 1003 b) CCP, the Court also concluded that Ms. Sibiga was not an adequate representative for the proposed group pursuant to art. 1003 d) CCP. Indeed, the Court was clearly preoccupied with circumstances under which Ms. Sibiga became the representative plaintiff, as well as her lack of knowledge and familiarity with the proposed class action. While the Court once again reiterated that a low threshold is to be applied when analysing the adequacy of a representative, in the present case the Court held that Sibiga's role as representative was an afterthought and that she simply replied to a solicitation email from counsel once all of the research regarding international roaming fees had already been carried out by her attorneys. As such, Ms. Sibiga failed to demonstrate the minimum required competence to assist her attorneys in the class action proceedings and to represent all the members of the proposed group adequately. In short, the Court found that that the proposed class action was lawyer driven and that Ms. Sibiga's participation was minimal. The Court thus refused to allow such a lawyer driven class action to proceed, ruling that the required threshold pursuant to art. 1003 d) CCP was not met.
Conclusion
This is an important decision for all companies doing business in Quebec, particularly in light of the recent decisions rendered by the Supreme Court of Canada. It confirms that authorization remains a crucial step in class actions and is necessary to protect respondents from being unjustifiably embroiled in complex and costly litigation which do not meet the requirements of art. 1003 CCP. Indeed, following the rulings in Infineon and Vivendi, this decision reminds us that even though the Petitioner's burden of proof may be a low one at the authorization stage, the representative plaintiff must nonetheless satisfy the Court that her cause of action is supported by the necessary allegations of fact and that she can adequately represent the proposed group.
Quebec defendants and their counsel should thus not be entirely pessimistic about the likelihood of defeating a proposed class action at the authorization stage. As this case demonstrates, the authorization hearing can serve as an invaluable opportunity to put an end to a class action before what are often long and costly trials on the merits.
It should be noted that Petitioner still has the right to appeal this decision.
*Fido Solutions Inc. and Rogers Communications partnership were represented by Pierre Lefebvre, Eleni Yiannakis and Noah Boudreau of Fasken Martineau.
[1] 2013 SCC 59 [Infineon].
[2] 2014 SCC 1 [Vivendi].
[3] Infineon, above note 1 at paras 57–61.
[4] 2006 QCCA 1342. [Bouchard].
