In Frank-Fort Construction inc. v. Porsche Cars
Canada Ltd., the Quebec Superior Court (Justice Donald Bisson)
recently ruled on an Application to be relieved of default for
failing to file an Answer to a Motion to Authorize the Bringing of
a Class Action within the prescribed 15-day time limit. Filing of
an Answer is the equivalent of filing an Appearance under the New
Code of Civil Procedure ("new CCP") in force in
Québec since January 1, 2016.
The authorization motion was filed on November 10, 2015 and
served on the last Respondent on November 17, 2015. Under the new
CCP, the deadline to file an Answer is 15 days after being served
with the motion. As none of the four Respondents had filed an
Answer, on December 11, 2015, the Petitioner filed for Default
Judgment. Although a Default Judgment filing is highly unusual in
class actions proceedings, it remains available to the
The authorization motion was heard ex parte in February
2016 (Justice Pierre C. Gagnon).
On February 23, 2016, while the matter was under advisement,
counsel for the Respondents wrote to Justice Gagnon asking that a
new authorization hearing take place. The Respondents filed their
Answers on the same day. Justice Gagnon, a former partner at the
firm representing three of the four Respondents, recused himself
and agreed to simply not render a decision on the ex parte
authorization hearing. In March 2016, the Respondents filed
applications to be relieved from the default of having filed an
Seized with the Respondents' motion, the new judge, Justice
Bisson, held that the 15-day time limit to file an Answer is not a
strict one and therefore the Respondents did not have to
demonstrate that it was impossible for them to act sooner. Justice
Bisson held that where an Answer is not filed within the time limit
the question before the Court is whether the Court should extend
the time period for the Respondents to file the Answer, pursuant to
article 84 of the new CCP.
Justice Bisson held that an extension of time should be granted
and relieved the Respondents from their default. Justice Bisson
held that (i) the balance of convenience was in the
Respondents' favour; (ii) the Respondents had a serious defence
to present against the Motion to Authorize the Bringing of a Class
Action; (iii) refusing to relieve the Respondents from their
default would violate their fundamental right to be heard (audi
alteram partem); (iv) it was in the interest of justice that a
contradictory debate take place on the Motion to Authorize the
Bringing of a Class Action; and (v) it was reasonable not to file
an Answer before the validity of the service of the Motion to
Authorize the Bringing of a Class Action could be confirmed.
Despite this favourable judgment, any Respondent to a Motion to
Authorize the Bringing of a Class Action should keep in mind that
the deadline to file an Answer is 15 days after being served with
an authorization motion. Respondents should comply with this
deadline in order to avoid the hassle and legal costs related to
Default Judgement proceedings and a potential ex parte
judgment authorizing the bringing of a class action.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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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