In the context of this class action, the
Quebec Superior Court1 recently granted a request to
split the action, thereby splitting the trial into two stages: a
first stage during which damages will be assessed and a second
stage addressing liability.
In this case, the plaintiffs essentially claim that the
defendants engaged in anticompetitive activities to sell gas in
Quebec. The Court had to rule on a motion by the defendants, who,
prior to the presentation of evidence on liability, wanted the
Court to determine the appropriate method for the calculation of
damages as well as their quantum. The Court began its analysis by
reiterating the principles that should guide the judge seized of
such a motion. It noted that although the general rule is that a
trial is heard as a whole, the splitting of an action is not an
extraordinary measure. Splitting an action is appropriate if it
accelerates the judicial process, while reducing costs. More
specifically, the Court must determine whether certain predefined
criteria favour splitting the action or not. Its analysis may be
summarized as responding to the following questions:
Are the issues to be determined during the first stage simple
Are the issues to be determined during the first stage distinct
from those that will be dealt with during the second stage, or are
they closely linked?
Is the judgment to be rendered at the end of the first stage
susceptible of putting an end to the litigation, of limiting the
scope of the issues to be determined during the second stage or
likely to increase the chances of reaching a settlement of the
What resources have the parties already dedicated to one or the
other issues or all of them taken together as a whole?
What advantages will splitting the action provide the parties
in comparison to the risks or inconveniences that it may
The Court must thus ensure that splitting the action respects
the rule of proportionality and promotes access to justice.
In regard to the complexity of the issues, the Court noted that
the parties had obtained a total of eight expert reports on the
issue of damages and that, further to the Court's request, the
experts had met and prepared a joint report. Although it was agreed
in the joint report that the same damage calculation methodology
would be used, some fundamental issues in regard to the assessment
of damages remained to be determined. Thus, considering the reports
obtained and the complexity of the issues, the Court ruled that
this criterion favoured splitting the action.
In regard to the second question, the Court was of the view
that, like in most cases, the issues regarding liability could be
treated separately from those regarding damages and that, in this
case, nothing indicated that these issues were closely linked. The
Court indicated that the expert reports already contained the
information required and the methodology to be used to assess the
With respect to the third question, the Court noted that the
defendants were unanimously of the view that a judgment quantifying
the damages would encourage them to settle the litigation or at
least limit the questions to be debated during the second stage of
the trial. On the other hand, the Court noted that the plaintiffs
would only be inclined to settle if their expert's theory was
retained by the Court. Considering that splitting the action serves
primarily the proper administration of justice before aiming to put
an end to litigation, the Court concluded that, in this case,
splitting the action could, all the same, have a decisive influence
on the continuation of the dispute.
In regard to the resources already dedicated by the parties to
the litigation, the Court referred to the eight expert reports and
the joint report already prepared and indicated that it would be
useful to conduct a thorough analysis of the elements already
available considering all the work remaining to be done by the
parties in regard to the evidence on liability.
Finally, considering that splitting the action is merely a
procedural measure and would not cause the parties to lose any
rights, the Court granted the motion.
In closing, it should be noted that under the new Code of
Civil Procedure, an action may be split of the judge's own
motion, whereas previously, splitting the action had to be
requested by one of the parties. It will be interesting to see if
judges will avail themselves of this new power in order to
encourage recourse to private dispute resolution methods and
encourage the proportionate and economical application of
procedure, which, moreover, are among the principle objectives of
the new code.
1 Jacques v. Pétroles Therrien Inc., 2105
2 Ibid. at para. 25.
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.
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.
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