In Filion v.
Québec (Procureure générale), the
Québec Court of Appeal overturned a decision of the Superior
Court which held that "Non-Registered" class members were
not clients of Plaintiffs' counsel. The Court of Appeal
consequently determined that the Defendant's counsel was not
entitled to meet with any class members without Plaintiffs'
counsel being present.
The Plaintiffs were authorized to file a class action on behalf
of people living near the Laurentian Autoroute allegedly affected
by the noise of increasing road traffic. Defendant's counsel
brought a motion requesting that the Court order Plaintiffs'
counsel to provide a list of Registered Members in order to
identify the Non-Registered Members and meet with some of them
without Plaintiffs' counsel present.
Court granted this motion, distinguishing "Registered
Members" of a class – who either registered for the
class action, attended information sessions held by Plaintiffs'
counsel or otherwise met with Plaintiffs' counsel regarding the
class action – from "Non-Registered Members".
Court of Appeal Decision
The majority of the Court of Appeal rejected the notion that two
different categories of class members exist. The Court held that
the notion of members of the class is a consistent and uniform
legal concept: you either are a member of the class (this includes
the representative and any intervener) or you are not (this
includes those who opt out of the class action or are deemed to
have done so).
Moreover, the majority held that all class members (with the
exception of the representative and any intervener):
are equal and enjoy the same rights;
benefit from a relative right to anonymity;
do not have to take part in the proceedings until the recovery
do not have to support costs of the action (in money, time and
do not have to hire a lawyer while having a right to payment in
the event of success.
Noting that, if the Superior Court judge was right that a
certain form of attorney client relationship exists between the
Registered Members and class counsel, the list of Registered
Members may itself be privileged, as the fact that a citizen
consulted a lawyer is protected by attorney-client privilege, the
Court of Appeal held that Defendant does not have a right to the
list of the Registered Members.
Reiterating the reasons above, the Court also held that
Defendant's counsel does not have the right to meet with the
Non-Registered Members outside the presence of Plaintiffs'
counsel as this would be contrary to article 1019 of the Civil
code of procedure, which requires court authorization prior to
examining any class members. The Court also underlined that,
whether from the perspective of attorney-client privilege or
litigation privilege, such meetings would be inappropriate.
Implications For Parties To Class Actions
Although the Court of Appeal's decision has the effect of
clarifying the status of class members by eradicating any
distinction between Registered Members and Non-Registered Members,
the Court of Appeal emphasized the limited application of this
decision to the facts of this case.
The Court specifically noted that its decision cannot be
interpreted as putting into question the common practice of
petitioners joining a list of potential class members to motions
for authorization to institute class actions.
These comments also make it clear that this decision does not
affect the possibility for a defendant to file a motion in order to
obtain access to a complete list of class members, which makes no
distinction between Registered and Non-Registered members, in
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A recent decision of the Ontario Court
of Appeal, D'Onofrio v. Advantage
Car & Truck Rentals Ltd., 2017 ONCA 5,
asks whether a party who takes "no
position" on a summary judgment
motion is later bound by the motion
judge's findings in the ongoing
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