On January 16, the Supreme Court of Canada released its first
decision of 2014. The decision in Vivendi Canada Inc. v
Dell'Aniello addressed a Québec action that sought
to be authorized as a class action. Justices LeBel and Wagner
wrote the decision jointly and clarified the authorization test for
Québec class actions, which is comparable to the
certification test in the common law provinces. At the
authorization stage, a Québec judge's function is to
screen motions to ensure that defendants do not have to defend
against untenable claims.
The action in Vivendi was brought on behalf of
beneficiaries of a health insurance plan that had been unilaterally
amended by Vivendi. The action seeks to challenge the validity
of Vivendi's amendments, which are adverse to the interests of
the only remaining beneficiaries of the insurance plan, being
retirees and surviving spouses of former employees. The
Québec Superior Court dismissed the plaintiff's motion
for authorization on the basis that the claims of the members of
the proposed class did not raise questions that were
"identical, similar or related", as required under the
Québec Code of Civil Procedure. The Court
noted that there were different rules governing each member's
right to insurance benefits.
However, the Québec Court of Appeal allowed the
plaintiff's appeal and authorized the institution of a class
action, finding that there was a question common to the claims of
all the members of the proposed class. The question of whether
the insurance plan amendments were valid or lawful was a question
common to all plan beneficiaries.
Ultimately, the Supreme Court dismissed Vivendi's appeal,
agreeing with the Québec Court of Appeal to find that a
common question did indeed exist. The Supreme Court noted
that, in all provinces, the common success requirement for a class
action must not be applied inflexibly. A common question can
exist even if the answer given to the question might vary from one
member of the class to another. However, success for one
member must not result in failure for another. It is enough
that the answer to the question does not give rise to conflicting
interests among the members.
The Supreme Court then provided a comparison of the level of
commonality required under the Québec authorization test,
versus the commonality requirement applied under the certification
test in the common law provinces. While the common law
provinces require common issues, the Québec legislation
requires only similar or related questions. The Court found
that Québec's authorization test in respect of
commonality is less stringent than the common law certification
requirement of commonality. Québec's approach to the
commonality requirement is often broader and more flexible. In
Québec, the authorization test may be met even if the common
questions raised by the class action require nuanced answers for
the various members of the group.
The Supreme Court also distinguished the authorization
test's "proportionality" principle from the
"preferable procedure" requirement in the common law
provinces. In Québec, the authorization test does not
require the Court to ask whether a class action is the most
appropriate procedural vehicle, as required in the common law
provinces. Though the Québec authorization test
incorporates the proportionality principle throughout,
proportionality is not itself a separate criterion necessary for
authorization, unlike the preferable procedure requirement in other
provinces. When applying the proportionality principle, the
Québec Courts must be careful not to indirectly introduce
the preferable procedure requirement into the analysis for
authorization. Moreover, Québec courts cannot rely on
the principle of proportionality to refuse to authorize an action
that otherwise meets the authorization criteria established under
the Québec Code of Civil Procedure.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
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).