In a ruling handed down on July 9, 2014, the Superior Court of Quebec affirmed1 that members who have not "registered" for a class action ("non-registered" members) are not clients of the plaintiff's lawyers. In doing so, it confirmed the right of the defendant's lawyers to meet with the "non-registered" members without plaintiff's counsel being present.
Quebec is an "opt out" jurisdiction for class actions. As such, people covered by a class description do not have to take any steps to be part of a class action. They are automatically members of the class and therefore do not have to register.
However, it is a widespread practice among plaintiffs' lawyers to invite class members, on their websites, to "register" with them by completing an online form. As these members are part of the class by operation of the law alone, the actual purpose of this is not to "register" these members for the class action but to put them in contact with the plaintiff's lawyers.
For defendants in class actions, having access to the list of "registered" members is very useful. At the certification stage, such a list can help them determine if applicants have sufficient knowledge of the situation of the class on whose behalf they intend to institute a class action. On the merits of the action, it can be used as a tool for estimating the number of class members likely to testify at trial in support of the plaintiff's claims.
However, even with access to such a list, the defendant's lawyers cannot contact "registered" members directly. The law in Quebec has been clear on this matter for some years now:2 owing to their status, members who have "registered" for a class action may claim the right to solicitor-client privilege, making any contact of this type out of bounds.
Until the Honourable Alain Michaud, J.C.S., issued his ruling on July 9, the law was hazier when it came to the status of "non-registered" members.
The court was asked to rule on a motion by the defendant to obtain the "registered" members' contact information in connection with an environmental class action.
The defendant's lawyers wanted to use a contrario the list of registered members to identify all the "non-registered" members and meet with some of them without the plaintiff's counsel being present. The lawyers for the plaintiff challenged the motion.
The court allowed the motion in a judgment confirming the difference in status between members who have "registered" and those who have "not registered" for a class action lawsuit.
The Court stated that the plaintiff's lawyers are counsel for the representatives, not for all the class members, and "non-registered" members are not persons "represented by an advocate" within the meaning of the Code of ethics of advocates. It therefore found no principle preventing the defendant's lawyers from meeting with certain "non-registered" members, defined as "[translation] members not having any contact with the plaintiff's lawyers."
As for the issues specific to the matter before it, the court ordered the applicants to communicate the list of "registered" members and allowed the defendant's lawyers to meet with a maximum of 60 "non-registered" members without the plaintiff's lawyers being present. Using its case management powers, the court nonetheless issued orders delimiting the framework for this exercise (duration, etc.).
The case is currently being appealed and a hearing on its merits is scheduled for October 29, 2014.
If the judgment is upheld on appeal, it will mark a major development in the way class actions are conducted in Quebec because it confirms the right of the defendant's lawyers to meet, without the lawyers for the plaintiffs being present, with the "non-registered" members of a class action. This right could prove highly valuable in class actions where the situation of each member is likely to change, particularly in environmental matters.
1. 2014 QCCA 1536 (in appeal).
2. Imperial Tobacco Canada Ltd. c. Létourneau, 2012 QCCA 2013.
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