Canada: Enough Is Enough: Court Suspends Class Action For Vexatious Conduct By Petitioner, Counsel

In September 2015, the Superior Court of Québec (Court) released a landmark decision rendered by Justice C. Masse in Deraspe v. Zinc électrolytique du Canada ltée​, in which — for the first time in the area of class actions — the Court granted a motion for declaration of improper use of procedure, incapacity and quarrelsome conduct against a representative and his counsel.


The class action was filed on March 19, 2012, in response to a sulfuric anhydride leak that occurred on August 9, 2004, at the zinc refinery plant operated by Zinc Électrolytique du Canada Ltée (EZC) in Salaberry-de-Valleyfield (Action). The applicant, François Deraspe, alleged that the leak had caused a range of symptoms to exposed individuals.

During the hearing of the motion, the plaintiff's counsel maintained, among other things, that Justice Masse had been ordered to grant the motion, which led EZC's counsel to file a motion for declaration of improper use of procedure, incapacity and quarrelsome conduct against Mr. Deraspe and his counsel. According to the Court, Mr. Deraspe and his counsel, Ms. Chantal Desjardins, exhibited improper and vexatious conduct throughout the proceedings. Among other things, the plaintiff and his counsel engaged in a series of vexatious proceedings and correspondence, "riddled with insults, and unsubstantiated attacks" [translation]. In countless interventions with the Chief Justice of the Court, the plaintiff's counsel used an "inappropriate, sometimes even menacing, and constantly disrespectful tone" [translation]. The plaintiff's counsel even tried to turn the judge assigned to managing the case into a party to the dispute. In addition, the plaintiff claimed C$1-million from each of EZC's and defendants' law firms for exemplary and reputational damage, alleging that the firms "had defrauded the administration of justice" [translation].


The Court granted the motion, stripped Mr. Deraspe of representative status and ordered his counsel to transfer the case to the Office of the Syndic of the Quebec Bar Association. The plaintiff and his counsel were both declared vexatious litigants in connection with the Action and were solitarily condemned to pay the costs. Out of concern for the interests of the class members, the Court suspended the case for a period not exceeding six months to allow it to be resumed by a new representative and counsel, rather than dismissing it on the merits.

Application of CCP Article 54.1 to Class Actions

Taking the lead from the Court's comments in Marcotte v. Longueuil (City), the Court applied Articles 4.1, 4.2 and 54.1 of the Code of Civil Procedure (CCP), which allow the Court to impose sanctions for improper use of procedure and conduct likely to bring the administration of justice into disrepute. The Court further pointed out that, even if CCP Article 54.1 did not apply, its inherent powers would allow it to impose sanctions for improper and vexatious conduct as such sanctions were necessary to allow it to fulfil its duties in a fair and reasonable fashion.

The Court also pointed out that had the defendants not filed the motion for declaration of improper use of procedure, incapacity and quarrelsome conduct, it would have been appropriate for the Court to intervene with its own motion in order to impose sanctions for the representative's and his counsel's conduct.

Since the Court was unable to determine whether counsel or the representative was responsible for the improper use of procedure, it ruled that both were liable for the quarrelsome conduct that prevailed in this case and imposed sanctions on both of them.

Removing Status of Representative

The plaintiff submitted that the wording of CCP Articles 1023 and 1024 is restrictive and that he could lose his status of representative only through the application of these provisions. The Court did not accept this interpretation and held that these provisions did not exclude the application of other provisions that allow the Court to ensure a healthy administration of justice. In addition, CCP Articles 1023 and 1024 and Article 54.1 are not incompatible. Since Ms. Desjardins's numerous proceedings were supported by Mr. Deraspe's affidavits or had been authorized by him, his conduct conflicted with the interests of the class members and his responsibilities as a representative. The Court therefore stripped him of his status as a representative.

Removing Counsel from a Case

Ms. Desjardins maintained that CCP Article 54.1 refers to a "party" rather than its counsel, meaning that no sanctions could be imposed upon her, pursuant to this provision. The Court, however, ruled that this provision did not interfere with the exercise of its inherent powers with respect to counsel. The Court maintained that, in addition to her conduct, which brought the administration of justice into disrepute, Ms. Desjardins demonstrated that she no longer had the independence required of counsel to advise a client when she personally filed an application in the same case. The Court thus ordered Ms. Desjardins to transfer the entire case to the Office of the Syndic of the Quebec Bar Association and suspended the case for a period of six months to allow it to be resumed by a new counsel.


This is the first class action in which the Court draws the line in terms of improper and vexatious conduct by a representative and his counsel. Even though this decision was rendered under exceptional circumstances, it shows that improper use of procedure by the representative and his counsel within the framework of a class action can give rise to sanctions at the defendant's request or even by the Court of its own motion. This decision is a clear warning to the parties, including the representative, to refrain from adopting conduct that brings the administration of justice into disrepute within the framework of a class action.

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

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Nov 2018, Other, Toronto, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

28 Nov 2018, Speaking Engagement, Toronto, Canada

Arbitration has a number of advantages and some disadvantages for the resolution of domestic and international commercial disputes.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions