Canada: Despite Vivendi, When Class Actions Are Overly Individual In Nature, Authorization Is Dismissed

In Caron v. Fraternité provinciale des ouvriers en électricité, section locale 1676, 2016 QCCS 25, the Superior Court of Québec refused to authorize a class action on behalf of linesmen who had paid contributions to the Respondents, Unions and Québec Construction Board, pursuant to the Act Respecting Labour Relations, Vocational Training, and Workforce Management in the Construction Industry (the "Act R-20").

The Petitioner alleged that there was no legal relationship between the members of the putative group and the Respondents, given that the members of the putative group were working for enterprises under federal jurisdiction that were therefore not subject to the Act R-20.

The Court concluded that the class action could not be authorized, notably because the Petitioner had failed to demonstrate that "the recourses of the members raise identical, similar or related questions of law or fact". The Court found that the determination of whether the employer of each member of the putative group was of provincial or federal jurisdiction constituted a complex and individual question not amenable to class proceedings. Moreover, given that some of the contributions were voluntary, the Court would have had to determine whether the consent of each member of the putative group was vitiated. Finally, the Court found that an action for recovery of contributions, should it be granted, would mean that restitution of prestations would also have to be ordered. Such an issue was complex and individual in nature. For these reasons, the Court concluded that the Petitioner's action was more of an individual than a collective nature.

Caron supports the contention that a proposed class action that will necessitate several mini-trials on the merits, as it is often the case in proposed pharmaceutical class actions for example, is not amenable to class proceedings and should therefore be dismissed at the authorization stage.

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