In Martel v. Kia Canada inc.2016 QCCS 2097, Justice Chantal Tremblay of
the Superior Court ruled on a motion by Plaintiffs to amend their
claim after the class action was authorized. After going over the
general principles, Justice Tremblay dismissed certain amendments
on the basis that they would result in an entirely novel claim.
This decision arises out of a class action instituted against
Kia Canada Inc., manufacturer of Kia vehicles, on the basis that
the dealers required more intense and frequent maintenance than
that provided by the manufacturer in its owner manual, on which the
class members allegedly relied to decide to purchase a Kia vehicle.
Petitioner argued that the manufacturer's representations in
the owner manual were thus false and resulted in unforeseen
maintenance costs. Importantly, Petitioner relied on arts. 219 and
228 of the Quebec Consumer Protection Act (CPA) for its
claim against Kia Canada.
Although the motion for authorization was initially dismissed by
the Superior Court, the Court of Appeal reversed the decision and
granted the authorization. Justice Tremblay was then assigned to
oversee the class action.
Subsequently, Plaintiff Martel asked to amend both the class and
the claim, which was contested by Kia on the basis that it resulted
in an entirely novel claim. In essence, Martel sought leave from
the Court to include additional model years in the class
description; to rely on additional articles (arts. 40 and 41) of
the CPA; and to remove the reference to the dealers to include
members who had their cars maintained elsewhere (such as with an
Justice Tremblay reiterated the principles according to which
amendments in a class action should abide by the principle of
"variation on a familiar theme" (variation sur un
thème connu). She also underlined that the amendments
should be "implicit or accessory" to the issues
authorized by the Court. To the contrary, the amendments could not
introduce an entirely new cause of action nor change the essence of
the initial claim.
Applying these principles to the case at hand, Justice Tremblay
allowed the addition of certain model years, concluding that
Kia's owner manual had not changed during those years and thus
owners of 2014, 2015 and 2016 Kia vehicles had the required
interest to be included in the class. However, on the more
significant amendments, Justice Tremblay concluded that
Plaintiff's attempt to include arts. 40 and 41 of the CPA would
result in an entirely novel claim because Plaintiff could now rely
on the absolute presumption of prejudice found under art. 272 of
the CPA. Justice Tremblay also held that the reference to the
dealers only could not be removed, as the inclusions of non-dealers
was not implicit to the issues authorized and there was no evidence
that their maintenance requirements was similar to that of the
This detailed decision by Justice Tremblay to illustrate that
Plaintiff's right to amend its claim in a class action that was
previously authorized is not a blank check to introduce entirely
This paper discusses contract law issues including decisions of relevance to commercial lawyers and business leaders giving a snapshot of particular principles of interest that arose in case law over the past 12 months.
In the case Cantin c. Ameublements Tanguay inc., 2016 QCCS 4546 (the "Cantin Case"), the Superior Court of Quebec granted authorization of a proposed class action by consumers against various respondents...
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