Canada: A Superior Court Judgment Sheds Doubt On The Legal Effect Of Notices And The Ultimate Purpose Of Class Action Judgments

On January 4, 2012, Québec Superior Court Justice Martin Dallaire rendered a decision in Renaud c. Holcim Canada Inc.1 (Holam Canada Action). This decision may have significant repercussions as it allows for the institution of a new class action by a group that was excluded from a previous class action which was granted on the merits, and which decision was then confirmed by the Supreme Court of Canada in the St. Lawrence Cement Inc. v. Barrette2 case (St. Lawrence Cement Action).

In the St. Lawrence Cement Action, the company, which operated a cement plant, was ordered to pay damages for neighbourhood disturbances. After a legal battle that lasted approximately 15 years, the Supreme Court of Canada recognized that there was no-fault liability in an environmental law context for neighbourhood disturbances. In the St. Lawrence Cement Action, resident neighbours of the cement plant in the Villeneuve neighbourhood had been excluded from the perimeter of the disturbance at the origin of the lawsuit. In the Holam Canada Action, these same residents have now been authorized by Justice Dallaire to institute a class action against the company that operated the former cement plant, which closed several years ago.

Summary of the facts

This decision is based on the following facts:

In accordance with the applicable procedural rules, a public notice was issued and published in Le Soleil newspaper on May 8, 1994, after Justice France Thibault authorized the St. Lawrence Cement Action against the cement plant on March 31, 1994. The notice listed the areas that were covered by the class action, and unequivocally excluded the area in which the applicants in the Holam Canada Action resided. Therefore, these applicants were not part of the group for which the St. Lawrence Cement Action was authorized. These applicants claim that they were never aware of the published notice. They were only aware of the claims in the St. Lawrence Cement Action and alleged that they erroneously believed that they were included in the group.

When they discovered that they were excluded from that group, the applicants aggressively petitioned the court to amend the description of the group so as to include the persons who were excluded (and who, in their opinion, should have been included) so that these persons could submit claims and obtain compensation. Justice Yves Alain rejected the applicants' claims, on the grounds that it was no longer possible to amend the designated group. It is noteworthy that Justice Alain's decision came after the final judgment was rendered by the Supreme Court of Canada.3 The Court of Appeal confirmed this decision, putting an end to any attempt by the applicants to take part in the St. Lawrence Cement Action. The applicants' efforts and proceedings, which were initiated after the final judgment regarding the matter was rendered by the Supreme Court of Canada, clearly came too late.

Given the above-mentioned circumstances, the applicants decided to take a new approach and filed an application on behalf of the group of residents who were neighbours of the cement plant and who were excluded from the group identified in the St. Lawrence Cement Action.


Unexpectedly, in the Holam Canada Action, Justice Dallaire ruled in favour of the applicants and authorized the institution of a second class action against the Respondent.

In his decision, the judge mentions his difficulty in coming to a conclusion as the case required that he choose between the applicants' desire for social justice by compensating the "forgotten" victims, and the need to apply precise and defined rules of law to prevent the case from continuing indefinitely.

First, Justice Dallaire considered the proposed group and deemed it to be adequately specific and identifiable, emphasizing the fact that the area is geographically identifiable and that the inclusion in the group is based on facts specific to its members, namely the fact that they were not aware of the publication of the notice in the St. Lawrence Cement Action. With respect to the class representatives, the judge concluded that they met the requirements to lead a class action, insisting on the energy they had invested and the fact that they had exercised their legal rights with composure and determination.

Justice Dallaire then analyzed the key questions raised in this case. Referring to the useful and necessary role of the published notice in the St. Lawrence Cement Action, he found that the notice was in fact ineffective. Indeed, the evidence confirmed that many of the persons concerned were unaware of it.

Second, Justice Dallaire sought to answer two questions — firstly, did the fact that the members were not aware of the notice excuse their inaction, and, secondly, in the affirmative, did this render them truly unable to act. If they were truly unable to act then the applicants could claim that the limitation period had been suspended. Taking a broad and liberal approach, Justice Dallaire answered these questions in the affirmative, concluding that the members of the group in question may very well have been unable to act. In his opinion, the problem is simply due to an error that, given the circumstances, is understandable, since the notice published in the St. Lawrence Cement Action proved to be ineffective. This error would have placed the applicants in a position where they were unable to act.

However, Justice Dallaire notes that not being aware of a class action notice should not to be used as an easy excuse for filing a claim for compensation otherwise barred under the statute of limitations. In this particular case, he insisted, a series of circumstances unfortunately led to the applicants being unaware of the notice.

As for the Respondent's claim that this lack of awareness was inexcusable since it stemmed from the victims' negligence, Justice Dallaire exercised caution, noting that each member would nonetheless be subject to a condition, i.e., him/her not being aware of the notice. This will be examined objectively in an in-depth analysis on the merits in order to determine whether there was negligence on the applicant's part. In the judge's opinion, allowing negligence to be used as an argument at this stage would eliminate any grounds for the planned legal action, whereas the question requires more detailed evidence.

Finally, citing the principle of proportionality, the Respondent argued that a new class action would impose a heavy burden on it, insisting that it was legally entitled to rely on the decisions of the courts and to see the end of this debate, which otherwise could be before the courts for years. Justice Dallaire quickly dismissed these arguments, stating that [translation] "Admittedly, the process is gruelling, but it is, after all, a result of the Respondent's operations."


This decision raises serious concerns which are not directly addressed in the judgment.

Regardless of what the Court says, the effectiveness of notices could be seriously compromised by this decision. It could become significantly easier to claim not being aware of a notice as an argument for an inability to act in the hopes of filing a second lawsuit against a Respondent that has already devoted substantial resources to its defence. Moreover, the question of negligence on the part of the members of a group appears to have been eliminated from the process of authorizing the class action and deferred to the assessment of the merits of the case.

A class action, through which it is possible for an applicant to sue a business on behalf of a group without a mandate, is a process that can weigh heavily on the company in question. By its very nature, a class action brings together persons who are not directly involved in the proceedings. The publication of a notice is the means prescribed by the law to communicate with the members of a group. To ensure the class action system is effective and equitable for all parties involved, including the Respondent, it is essential to allow published notices to have their full legal effect. Published notices will never reach all of the potential members of a class action. If the notice was duly approved by the Court and published in accordance with the judgment by which it was approved, it should be allowed to have its full effect, in keeping with the principle of the irrevocability of judgments, the stability of legal relationships between the parties involved, and equity toward the Respondents. If the legal effect of a notice to the members depended on the targeted individuals actually being aware of said notice, a class action proceeding would then not fulfill its current role in our legal system.

The group of individuals for whom the Holam Canada Action was authorized is the same group that attempted to have the description of the group involved in the St. Lawrence Cement Action amended following the decision of the Supreme Court of Canada. The Superior Court denied the application, and the right to appeal was also denied. The reasons cited by the Superior Court were contrary to those of Justice Dallaire. Justice Alain mentioned that the institution of a new class action by the proposed group would probably not be the appropriate solution, given the statute of limitations. He noted that authorizing an amendment in the St. Lawrence Cement Action would have granted permission to accomplish by indirect means that which could not be accomplished directly. Justice Alain also concluded that equity played in the Respondent's favour, citing the apparent negligence of the applicants. The reasons of Justice Alain therefore contradict those of Justice Dallaire. This raises major concerns about the consistency of decisions in a given case. The decision of Justice Dallaire is based on a notion of equity with respect to the interests of the group excluded in the previous decisions, and seems to have been taken at the expense of the rights of a respondent in a class action.

We now have to hope that this case remains the exception rather than the rule.


1 2012 QCCS 82

2 [2008] 3 S.C.R. 392

3 Barrette c. Ciment du St-Laurent, 2010 QCCS 1787; motion to appeal denied, Roy c. Ciment du St-Laurent inc., 2010 QCCA 831

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions