As a third and final installment to this blog's series on
the changes, or lack thereof, brought about by the new Code of
Civil Procedure ("CCP") to the
class action landscape in Québec (to see Part 1 on the new
rules of recognition of Multijurisdictional Class Actions, click here and Part 2 on the definition of
class members and representatives, click here), this post will consider the
changes brought about by article 578 of the new CCP to provide for
leave to appeal judgments authorizing a class action.
Leave to appeal allowed when authorization is granted
In 1982, respondents "lost" their right of appeal as
of right of a judgment authorizing a class action, which had been
the rule from 1979 in class action proceedings (1010 of the
Indeed, the current article 1010 of the CCP still provides for
what is criticized as being an "asymmetrical" right of
appeal: the applicant may appeal as of right a judgment
dismissing its application, while the respondent is
prevented from even requiring leave to appeal a judgment
In fact, both the draft bill and Bill 28 provided for status
quo in that regard. The Québec Bar opposed this state
of affairs with substantiated comments and expressed the wish that
article 578 of the new CCP should be amended to avoid denying what
it referred to as being "usual procedural rights" for
respondents. The Québec Bar put forward, inter
alia, that appeal upon leave would allow a better screening of
class actions as the cases doomed to fail would be known in advance
and that this would allow for greater harmonization with the common
law provinces, invoking the appeal on leave rule of Ontario and the
appeal as of right rule of British Columbia.
In the end, the legislator agreed with the Québec Bar,
and amended draft article 578 of the new CCP to provide that the
judgment authorizing a class action may now be appealed with
A judgment authorizing a class action may be appealed only with
leave of a judge of the Court of Appeal. A judgment denying
authorization may be appealed as of right by the applicant or, with
leave of a judge of the Court of Appeal, by a member of the class
on whose behalf the application for authorization was filed.
The appeal is heard and decided by preference.
As per art. 578(2), the appeal is heard and decided by
preference, which, in addition to the fact that class actions are
automatically referred to case management by a Superior Court
judge, helps to eliminate the concern of 1982 that it could be used
for dilatory purposes.
In her comments, the minister of Justice wrote that the appeal
should only cover the conditions of authorization (1003 of the
current CCP, 575 of the new CCP). Nevertheless, it remains to be
seen what criteria will be used by the Court of Appeal to allow
leave, particularly in light of the usual level of deference given
by the Court of Appeal to the Superior Court judges who manage
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.
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.
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).