Canada: The Court of Appeal Authorizes Retirees' Class Action Against Vivendi

Last Updated: June 12 2012
Article by Anne-Marie Lévesque, François Parent and Virginie Simard

On February 29, 2012, the Quebec Court of Appeal reversed the judgment of the Quebec Superior Court that had dismissed the motion to authorize the bringing of a class action filed by Mr. Michel Dell'Aniello ("Dell'Aniello") in connection with changes made unilaterally by Vivendi Canada Inc. ("Vivendi") to the extended medical insurance benefits plan for retirees.


In 1977, The Seagram Company Ltd. ("Seagram") established an extended medical insurance benefits plan for management and non-unionized employees (the "Plan"). Under the Plan, eligible employees were covered both during their employment and upon retirement.

In 1985, Seagram specified in employee brochures that it reserved the right to amend or terminate the Plan at any time, as well as to increase the portion of the costs payable by the employees and retirees.

In the early 2000s, Vivendi became the successor to Seagram and the Plan sponsor.

In September 2008, Vivendi informed retirees and beneficiaries that, effective January 1, 2009, the Plan would be amended as follows:

  • the annual deductible would increase;
  • only prescription drugs on the drug list of the province in which the retiree or beneficiary lived would henceforth be reimbursed;
  • a lifetime maximum of $15,000 for all coverage under the Plan would be introduced.

(hereinafter collectively referred to as the "Amendments")


In July 2009, Dell'Aniello filed a motion to authorize the bringing of a class action (the "Motion") in which he asked to be ascribed the status of representative of the class, namely all the retired members of management and the retired employees of Seagram who were eligible for post-retirement medical benefits under the Plan, and all other eligible persons under the Plan. The class includes some 250 retirees or surviving spouses of retirees who worked in six provinces.

The Motion seeks to obtain a declaration that Vivendi illegally amended the Plan, have the Amendments cancelled or declared unenforceable, order Vivendi to reinstate the Plan as it was before the Amendments and have Vivendi to reimburse the costs paid by each member of the class as a result of the Amendments.


The presiding judge, Justice Paul Mayer, analyzed the criteria to authorize a class action1, starting with the criterion requiring that there be identical, similar or related questions of law or fact for all class members2. He concluded that this condition was not met due to the substantial number of issues requiring an individualized analysis for each class member.

The judge stated that the rules governing the right to post-retirement benefits had to be examined first. After summarizing these rules, he held that several groups of retirees received different communications from the company at different times. He identified five main subclasses of members and indicated that the rights of each class member had to be determined based on the communications and documents he or she actually received.

The judge then briefly examined the situation for these five subclasses, noting that the class members' right to post-retirement insurance benefits had not crystallized, due mainly to the right the company had reserved for itself in the employee brochures to amend or terminate the insurance coverage.

Lastly, the judge found that the alleged prejudice suffered by each class member would have to be established on an individual basis and that the presence of members in five provinces other than Quebec meant that the issues raised by Dell'Aniello would have to be analyzed not only on the basis of civil law, but also on the basis of the relevant common law rules, and the time limitation rules applicable in these provinces. In his opinion, these two elements added an [Translation] "additional disparity which dilutes the collective nature of the recourse".


The Court of Appeal quashed the Superior Court decision, authorized the class action and ascribed the status of representative to Dell'Aniello.

After pointing out the objectives of a class action and the fact that the authorization stage is simply a filtering and verification mechanism, the Court held that the first judge had made a determining error of law by ruling on certain issues that were to be rather assessed by the trial judge at the stage of the hearing on the merits, including the vested rights of each subclass to the crystallization of their respective rights to post-retirement benefits. The Court noted that the first judge decided, without stating it specifically, that the reservation clause added in 1985 in the employee brochures was valid. According to the Court, such a determination cannot be made in the absence of evidence, which will only be introduced at the stage of the hearing on the merits.

The Court added that the first judge took into consideration other facts that should not have been examined at the authorization stage such as the fact that common law rules and time limitation rules applicable in other provinces would probably have to be analyzed.

The Court stated that it was sufficient for the first judge to limit his analysis to the main common issue submitted by Dell'Aniello, namely whether the Amendments were valid and legal. It held that the first judge erred in concluding that this main common issue would not significantly advance the recourses of the class members since these recourses were not sufficiently related. The Court based its reasoning on, among other things, the recent case Collectif de défense des droits de la Montérégie (CDDM) v. Centre hospitalier régional du Suroît du Centre de santé et des services sociaux du Suroît3 and reiterated the principle that it is not a requirement to identify several common, similar or related questions. Instead, the Court confirms that one common issue which, without being decisive, allows the claims to move forward, will satisfy the first of the four criteria stipulated at article 1003 C.C.P.

For the Court, the determination of whether or not the Amendments were valid and legal is a common issue of law that will benefit all class members. Further, although an individual analysis by the trial judge will ultimately be necessary, the Court held that this was not an obstacle to granting the motion for authorization.

The Court pursued its analysis and found that the criterion of the prima facie cause of action (set forth in article 1003 b) C.C.P.) was also satisfied. The two main arguments raised by Vivendi in this regard involved the issues of the vested rights of the retirees and whether the action was time barred. With respect to vested rights, Vivendi submitted essentially that although the legal principles which the trial judge would have to consider to determine whether the Amendments are enforceable against the class members are the same, these legal principles would not allow the debate to move forward for each class member.

The Court noted that the question of the vested rights of the class members was clearly at the heart of the dispute between the parties, and that the issue of whether Vivendi could unilaterally amend the Plan as it did should be decided by the trial judge taking all the evidence into account.

Regarding the time limitation, Vivendi argued that the action was prima facie time barred since Dell'Aniello was asking the court to cancel the reservation clause added to the employee brochures in 1985. Dell'Aniello argued that he only became aware of the ground of nullity of the reservation clause in 2009 while he was preparing his motion for authorization to bring a class action. He argued that at the authorization stage there is no need to pursue this issue further, as it should be decided by the trial judge.

The Court reiterated the principle that an action that is prima facie time barred should be dismissed at the authorization stage. However, in this case, the Court held that the issue of whether or not the action that Dell'Aniello wishes to institute is time barred is essentially a question of fact which will have to be analyzed by the trial judge.


In Nadolny4, the Ontario Superior Court of Justice held, like Justice Mayer, that a retiree's action contesting a change made to a post-retirement group insurance plan did not lend itself to a collective decision due to several issues requiring an individual analysis. In view of these two decisions concerning changes made to a post-retirement insurance plan, we wonder whether a new trend has developed, namely that a class action is not the appropriate procedural vehicle when different documents and communications are given to members of the class covered by the action, which is usually the case when a post-retirement insurance plan has been in effect for several years.

The Court of Appeal decision sets aside this problem. The Court noted that, in class actions, the authorization stage is only a filtering and verification mechanism and that the analysis to be conducted at this stage is limited to an examination of whether there are main questions in dispute, not an in-depth review of factual differences. The Court of Appeal also confirmed a recent trend favourable to petitioners, namely that the presence of a single common question of law which could contribute to the advancement of the case is sufficient to meet the first condition for bringing a class action.


1 Article 1003 Code of civil procedure ("C.C.P.").

2 Article 1003 a) C.C.P.

3 2011 QCCA 826.

4 Nadolny v. Peel (Region), 2009 CanLII 51194 (Ont. S.C.).

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