Where multiple aspiring class representatives file concurrent
applications involving the same parties, concerning the same object
and presenting identical facts, the court cannot allow all the
applications to proceed. This raises the question: which
application will be allowed to proceed and what will happen of the
others? The answer in Québec differs significantly
from the answer in the common law provinces.
The Servier Rule: First to File
The rule in Québec, as the Court of Appeal set out in Hotte c. Servier, is rather
simple: the first applicant to file an application is allowed to
seek the authorization to proceed with the class action. Meanwhile,
subsequent applications are stayed. In the event the first
applicant later fails in obtaining the authorization, a subsequent
applicant may try and take its place.
A Relaxation of the Servier Rule
The main benefit of the Servier rule is its simplicity.
Compared to the approach in other provinces, which requires courts
to hold a carriage hearing and determine which of the
concurrent applications should proceed considering several factors,
the Québec approach is predictable and avoids costly legal
battles at such an early stage of the proceedings.
Yet, the Servier rule does have its shortcomings. An
applicant racing to file its application is favoured over one
wishing to take more time and ensure the quality of its
application. The rule also allows filing an application for
purposes other than the active advancement of the claim, such as
obtaining a settlement.
In 2012, the Court of Appeal in Schmidt c. Johnson &
Johnson relaxed the rule in an effort to maintain the
benefits while averting the shortcomings. This new flexible rule
There is a presumption that the first application takes
precedence over subsequent applications, in accordance with the
Subsequent applications are stayed only to be heard,
chronologically, in the event the first application is
Subsequent applicants may however rebut the presumption. This
rebuttal does not require embarking on a comparative exercise to
show which application is better. Rather, it requires showing
serious defects in the first application and other indicia
suggesting that the first application is not being pursued in the
best interest of the putative class members.
Since Schmidt, the case law remains surprisingly thin
on this issue. In December of 2015, in Badamshin c.
Panasonic Corporation et al., (December 22, 2015,
Montreal, 500-06-000703-146, 500-06-000704-144, 500-06-000705-141,
500-06-000712-147 (QC)), the Superior Court, faced with four
applications, applied for the first time the approach set out in
Schmidt. Justice Déziel found that the first
application was not being advanced in the best interest of the
class members, and consequently, that the presumption was rebutted.
Certainly, as competition among class counsel heats up, concurrent
application disputes are bound to arise more and more in the
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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