On October 14, 2015, the Superior Court of Québec
rendered a decision refusing to authorize a class action against
Apple Canada Inc. and Apple, Inc. (together, "Apple"),
declaring the Petitioner's claim prescribed (i.e. past the
limitation period), and despite her allegations that it was
Apple's misrepresentations that had rendered it impossible for
her to act in due time (Ohana c. Apple Canada
inc., 2015 QCCS 4748).
The Petitioner, Nataly Ohana, attended at an Apple store in
Montreal on September 30, 2009 with a malfunctioning iPod Touch and
a near well dead iPhone, while both products were still covered by
Apple's one-year contractual warranty. Upon examination of the
devices, Ms. Ohana was told by an Apple representative that both
items had suffered from liquid damage and were thus ineligible for
warranty coverage. Ms. Ohana did not think so. In fact,
she knew with certainty that her iPhone Touch, at least, had never
gotten wet. She nevertheless chose not to raise the issue
further with Apple at the time. In February 2010, she had
both devices replaced by Apple for a fee. Years passed.
In April 2013, Ms. Ohana learned that Apple had settled a class
action pertaining to the alleged unreliability of its Liquid
Submersion Indicators (LSIs) in the United States. Although
the American action had been settled with no admission of fault or
liability on Apple's part, Ms. Ohana launched a motion for
authorization of a similar suit in Quebec. According to Ms.
Ohana, Apple's misrepresentations about the reliability of its
LSIs made it impossible for her to initiate the class action
The examination of the Petitioner – which is cited in
quite some detail in the ruling of the Superior Court –
proved fatal to her case. When asked whether she thought, at the
time of her visit to the Apple store back in September of 2009,
that her devices may, indeed, have been exposed to liquid, she
vehemently denied it – at least with respect to her iPod
Touch. In her own words, Ms. Ohana was "195%
certain" that this device had never been exposed to
liquid. The iPhone was a different story: Ms. Ohana worked at
a restaurant and occasionally left her iPhone on the counter
unattended – it may have gotten wet. Apple argued, and
the Court Agreed, that Ms. Ohana's action (based solely on her
iPod Touch) was therefore clearly prescribed: where Petitioner
remained 195% certain that she had a claim, whatever
representations were made by the Respondent to the contrary clearly
did not render it impossible for her to act in the sense of article
2904 of the Quebec Civil Code.
The Court also disagreed with Ms. Ohana's interpretation of
the significance of the U.S. class action – it proved nothing
in terms of Apple's fault, and only fed Ms. Ohana's
hypotheses which were insufficient to satisfy the requirements of
article 1003 b) of the Code of Civil Procedure ("CCP")
(which requires that the facts alleged seem to justify the
Reflecting on the other criteria necessary for the authorization
of a class action in Quebec, namely article 1003 a) CCP (requiring
that the recourses of the members raise identical, similar or
related questions of law or fact), the Court pointed out that what
the Petitioner presented as common questions actually concealed a
host of individual issues, including the level of conviction of
each individual class member as to whether their device had been
submerged in liquid. To undertake such an exercise for each class
member, the Court ruled, was not in keeping with the principle of
proportionality foreseen in article 4.2 CCP, to which all the
criteria of article 1003 CCP were subject.
Ms. Ohana also did not meet the criterion of article 1003 d) CCP
(requiring that the proposed member be in a position to represent
the group adequately). Among other reasons, the Court noted that
she did not appear to have conducted any inquiry prior to
instituting her action, nor did she contact Apple or any
prospective class members, choosing instead to file proceedings
modelled on the U.S. class action as soon as she learned of the
The case is of special interest in the Quebec class action
context, as the province is known for its relatively lenient stance
at the authorization stage. The decision shows that Quebec
petitioners seeking to copy U.S. class action proceedings may not
be able to rely exclusively on the existence of a settlement of
U.S. proceedings to meet their burden of demonstration here.
Further, prescription can indeed operate to defeat a proposed class
action. Petitioners who know that they have a claim cannot
avoid prescription by alleging misrepresentations, waiting to be
told that a case has been filed or a settlement entered into.
You know what you know, and if you do not act in time, you risk
being 195% prescribed.
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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