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On August 9, 2012, the Supreme Court of Canada granted leave to appeal from the Quebec Court
of Appeal's decision in Vivendi Canada Inc. v.
Dell'Aniello, a case concerning the requirement that
there be "identical, similar, or related questions of law or
fact" when authorizing a class action in Quebec. While this
requirement is found in article 1003(a) of Quebec's Code of
Civil Procedure, an analogous "common issues"
requirement applies on certification in other provinces as well.
Accordingly, the Vivendi appeal could have important implications
for class actions throughout Canada.
Background
Dell'Aniello is a former employee of Seagram Company Ltd.
("Seagram") and a former VP of one of Seagram's
subsidiaries. Vivendi S.A. acquired Seagram in December 2000. A
year later, a substantial portion of Seagram's assets were sold
and it became Vivendi Canada Inc. ("Vivendi").
Seagram's officer and employee health insurance plan (the
"Plan") covered the officers and employees, respectively,
as well as their dependents. They were covered both prior to and
for the entirety of their retirement. In July 1985, the Plan was
revised and the following footnote was added:
"While Seagram expects to continue this Supplementary
Health Insurance Plan indefinitely, future conditions cannot be
foreseen, thus it necessarily reserves the right to modify or
suspend the Plan at any time."
In September 2008, Vivendi informed the individuals covered by
the Plan that it would be reducing the Plan's benefits as of
January 2009. Dell'Aniello filed a motion for authorization to
institute a class action, seeking to declare that the modifications
were null, and obtain compensation for expenses occurred since
January 2009. The class included all the retirees of Seagram who
were eligible under the Plan, which amounted to approximately 250
individuals in 6 provinces. Vivendi argued that a significant
amount of issues required individual analyses for each class member
and thus the class action did not meet the common issues test.
The motion to authorize the class action was dismissed by the
Superior Court in August 2010 due to a lack of common issues
between the group members acquired rights, and the fact that the
class action would involve workers in 6 different provinces.
In February 2012, the Court of Appeal reversed the decision and
allowed the class action to proceed on the merits, holding that the
impact on the workers acquired rights of the amendments made by the
company constituted a common issue sufficient to authorize a class
action. In the Court of Appeal's view, the validity or legality
of the 2009 modifications is a common issue.
Potential Significance
Whatever the outcome of the Vivendi case, it will give
Canada's highest court an opportunity to provide further
guidance upon the requirement for common (or "identical,
similar or related") issues when authorizing or certifying a
class action.
The Supreme Court will likely address what happens when a judge
at the authorization stage cannot determine that the answer to a
legal question will necessarily be the same for all members of a
proposed group. Were the Court to hold that an authorization judge
can dismiss such an action if the answer varies among subgroups, it
would have significant ramifications for class actions throughout
Canada.
It is also noteworthy that this class action is national in
scope, with retirees in six provinces. In addition to reconfirming
that Quebec courts may certify national class actions, this case
may shed light on the impact of non-Quebec parties as class
members, and the validity of national class actions in other
provinces as well.
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.
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