A single common question can justify the authorization
(certification) of a class action in Quebec provided that it
"can serve to advance the resolution of the litigation with
respect to all the members of the group" (par. 4)
In assessing the sufficiency of the common question put forward
by the petitioner, the motions judge should look to this criterion
alone and not ask whether the common question necessarily
leads to a common answer.
As the Supreme Court of Canada recently explained in
"The commonality requirement does not mean that an
identical answer is necessary for all the members of the class, or
even that the answer must benefit each of them to the same
Rather, according to the Supreme Court,
"It is enough that the answer to the question does not give
rise to conflicting interests among the members" (par. 46)
Unlike in other Canadian jurisdictions, class actions can be
authorized in Quebec where:
there is only one common question
that is "not insignificant" to the outcome of the
that common question does not
predominate over individual questions; and
nuanced answers could eventually be
provided to the common question in the context of a trial on the
The Supreme Court also made it clear that proportionality,
codified at article 4.2 of the Quebec Code of Civil
Procedure (C.C.P.), is not an autonomous touchstone that can
defeat a class action that would otherwise meet the four conditions
for authorization (art. 1003 C.C.P.). Instead, it is an underlying
principle that should guide the courts in their appreciation and
application of the existing conditions (commonality, good colour of
right, procedural appropriateness and adequacy of the proposed
Furthermore, the Supreme Court expressed the opinion that the
fact class members reside in different provinces – and may
therefore be subject to different statutory regimes – is not
a bar to authorization unless there exist relevant distinctions
between these regimes.
Vivendi demonstrates that Quebec's approach to
commonality is unique. The pleading standard is more attenuated
than that of the common law provinces, as is the legal analysis.
While the bar may be lower than elsewhere, however, it would be
incorrect to say that nothing is asked of the petitioner. The
Supreme Court did not say that any common thread will do, no matter
how frayed or tenuous. The common question must advance the
proceeding as a whole and must provide a benefit to
every class member. Determining precisely what this means will
be up to the motions judges, who will now be expected to adapt the
Supreme Court's reasoning to the specific facts and claims they
are called upon to "filter."
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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.
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