On July 4, 2011, the Court of Appeal1 authorized a
class action against the Québec government on behalf of a
group of Charlesbourg residents complaining of noise caused by the
The Court of Appeal set aside the motion judgment rendered May
17, 2010 by Justice Gilles Blanchet, who had dismissed the motion
for authorization to institute the class action.2
Petitioners Charles Carrier, Maurice Filion and Réal
Maltais complained that traffic on the Laurential Autoroute caused
noise pollution. They argued that the noise constitutes an abnormal
neighbourhood annoyance within the meaning of article 976 of
the Civil Code of Québec.3
They tried to convince Transports Québec to build a
The Superior Court ruled that the petitioners could not
establish their prima facie right to the conclusions
sought because the questions of fact or law raised in their legal
action dealt with political decisions of the State.
While the motion judge decided that the members of the group
raised identical, similar or related questions of law or fact, he
also ruled that the petitioners had not tried to contact all of the
residents to see whether they wanted to institute a class action by
means of a mandate and power of attorney.
The Attorney General of Québec did not contest that the
plaintiffs were capable of representing the class adequately.
The dispute before the Court of Appeal was basically an issue of
colour of right: does the State enjoy immunity from prosecution in
this particular case under the rule that political decisions are
not subject to court review?
The Court of Appeal decided that the motion judge was
"[TRANSLATION] overly stringent" when he
"[TRANSLATION] prematurely" held that a ground of defence
prevailed against allegations that are supposed to be held as
proven at the stage of a motion for authorization to institute a
The court stated:
 First, it is important not to confuse the systems inherent to
controlling the lawfulness of State decisions with the system of
civil liability. Since article 1376 C.C.Q. was adopted, the rules
set forth in the Book on Obligations have applied to the State. If
the State wants immunity from the civil liability system, it can
claim public law immunity to free itself from its obligations, but
the burden will then be on the State to prove that this ground of
defence applies to its situation:
 [...]The civil law principles of civil liability now apply,
as a rule, to wrongful acts by such bodies. It therefore
belongs to the party which intends to rely on the public law in
order to avoid or limit the application of the general rules of
civil liability to establish, where the need arises, that there are
relevant public law principles that prevail over the civil law
 The sufficiency of the evidence is only weighed prima
facie at the authorization stage; as a general rule, it would
be premature to conclude that the immunity defence applies to the
State. It is but one ground of defence among many, and the immunity
invoked here by respondent cannot be raised as an objection to
admissibility at the authorization stage. Unless it is agreed that
the action is frivolous on its face or is certain to fail, that the
allegations of fact are insufficient, or that the law invoked is
"incontrovertibly" ill founded, it would seem unadvisable
under the circumstances to determine the absolute value of this
ground of defence at such an early stage of the analysis.
To conclude, the Court of Appeal believed that the motion judge
should first have analyzed the sufficiency of the allegations of
neighbourhood annoyances and of fault-based liability in order to
properly assess the value of the theory posited in the class action
before it retained the argument that the State enjoyed immunity
So what now? The Attorney General could seek leave to appeal the
matter before the Supreme Court of Canada, or it could get to the
merit of the issue by presenting the argument of State immunity
If the Attorney General does not ask the Supreme Court of Canada
to intervene, he would be conceding that the State immunity defence
is a question of mixed law and fact, which is the same as saying
that this type of ground cannot be successfully raised at the
authorization stage of a class action.
1. Carrier v. Québec (Procureur
général), 2011 QCCA 1231.
2. 2010 QCCS 2235.
3. Article 976 of the Civil Code of
Neighbours shall suffer the normal neighbourhood
annoyances that are not beyond the limit of tolerance they owe each
other, according to the nature or location of their land or local
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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