If the elements of fault, damage and
causal connection are established, can a court infer from the
evidence that all members of a class action have suffered similar
harm (or prejudice?) lang="FR-CA">Yes, according to
the recent decision in Biondi v. Syndicat des cols
bleus regroupés de Montréal(SCFP-301) et
Ville de Montréal (500-06-000265-047, September 3,
2010, Grenier J).
This was a class action on the merits
instituted further to events that took place between December 5 and
12, 2004. Plaintiff alleged that the City of Montréal and
the Syndicat des cols bleus regroupés de Montréal
(Blue Collar Workers Union or Union) were responsible for falls
that had occurred on icy sidewalks and other related injuries. She
contended that failing to de-ice and spread abrasives was negligent
considering the weather conditions at the time and that the
pressure tactics used by the Union were illegal and had been
undertaken in bad faith. Furthermore, she contended that the City
had acted negligently and wrongfully, among other things, by
changing the dispatching system at the very beginning of winter, by
failing to give proper training to supervisors and by omitting to
inform the Union of its decisions. She asked that the Union be held
responsible for punitive damages and that the City be found liable
jointly and severally for compensatory damages.
According to the Court, the evidence
adduced easily led to the conclusion that the Union was at fault
since there was negligence in the maintenance of sidewalks during
the ice storm. Furthermore, circumstances were such that punitive
damages were in order as the Union knew the likely consequences of
The City attempted to eschew its
liability by stating that it did not commit any actual fault and
that it could not be considered a principal since the blue collar
workers were not on duty at the relevant times. These two arguments
were rejected given that other cities had delayed the
implementation of comparable changes. Hence, the City could not
plead superior force.
The City applied for the dismissal of
the class action on the grounds that causality could not be
determined on a collective basis, the evidence did not show a
common causal relation involving all members of the class and it
was impossible to conclude that all of the injuries in question
were due to the blue collar workers' pressure tactics.
In answer to this motion for dismissal,
the Court first stated that the rules of evidence are the same
whether they are applied to individual actions or class actions.
Consequently, if the elements of fault, damage and causal
connection are proven, a court may infer from the evidence that the
members have sustained a similar prejudice. The Court added that it
could be presumed that if an individual had suffered a fall during
this period, it was most likely due to the poor maintenance of the
road. The testimony of an individual about his fall would be more
credible than that of the City or the Union since fault had already
been established. Causality was therefore logical, direct and
As to the causal connection, the City
stated that the possibility of contributory negligence had to be
assessed on an individual basis by considering the type of footwear
used by each class member as well as his or her knowledge of the
general condition of sidewalks and other public places. The court
found that these factors could be assessed in the context of
individual claims made by each member.
The Court ordered the Union to pay
$2M to the class members on a collective basis.
This decision is unexpected given the
principle that a class action, a procedural mechanism, may not
alter substantive law. Might Quebec courts be tempted to lower the
burden of proof of the representative with regard to the
establishment of an essential element of liability —
namely, the existence of harm — on a purely
presumptive and therefore speculative basis? To date, the approach
adopted in Biondi remains exceptional and will hopefully
not be followed in subsequent decisions.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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