Canada: 195% Dismissed: Apple Defeats Proposed Class Action Concerning Its Liquid Submersion Indicators

Last Updated: January 28 2016
Article by Emira Tufo

Most Read Contributor in Canada, September 2018

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 sooner.

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 conclusion sought).

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 U.S. settlement.

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.

To view the original article please click here.

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.

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