The new Québec Code of Civil Procedure (the
"CCP") has now been in force for eight months. Among the
new tools available to ensure "proportionality" and
"speediness" in proceedings, s. 234 of the CCP allows the
judge to appoint one or more qualified experts to provide expert
evidence deemed "necessary in order to decide the
dispute". There has been much speculation in the Quebec legal
community about the so-called "single expert" and the
context and the type of files in which judges would agree to use
their intrusive new power. Most practitioners expected (or hoped)
that it would be confined to smaller cases. InRegroupement des citoyens du quartier
Saint-Georges inc. c. Alcoa Canada ltée, 2016 QCCS
2969, ("Alcoa"), Justice Carl Lachance of
the Quebec Superior Court put an end to the speculation and granted
Plaintiff's motion to appoint an independent expert in the
context of a class action. The judgment was not appealed.
In Alcoa, a group of roughly 700 residents sought
compensation in connection with an alleged contamination caused by
polycylic aromatic hydrocarbons ("PAHs") emitted from
Alcoa's aluminum plant adjacent to the houses in Baie-Comeau,
Québec. The class action was authorized (the Quebec term for
"certified") on May 23, 2007. Between 2007 and 2009, the
Court ruled on motions to strike allegations, motions for
particulars and objections. However, no judgment was rendered by
the Court between October 2010 and April 2016, and according to the
docket, nothing was filed between November 2011 and November
In granting the motion, Justice Lachance found that it was
necessary to appoint an independent expert to speed up the progress
of the proceedings, which had been dormant for so long (para. 33).
The judge rejected the Defendant's argument that this measure
prejudiced its right to a full and fair defence. The judge
preserved the Defendant's ability to file a second expert
opinion challenging the conclusions reached by the court-mandated
expert. The Defendant will also have the opportunity to
cross-examine the expert.
Although the mandate delineated by Justice Lachance for the
expert is limited, it remained fairly expansive and touched upon a
sensitive and normally highly debated subject. The expert's
role will be to identify a number of households that are
representative of the class as a whole, and inspect and collect
dust samples in the houses identified in order to determine their
nature and composition. The court-mandated expert will not,
however, be allowed to express his opinion on the health risks
stemming from the analysis of the samples collected, the fault and
responsibility of the Defendant, the source of the contaminants or
the necessity of cleaning the houses.
Allowing the court-mandated expert to opine on a controversial
subject, i.e. what constitutes a representative sample of the
class, may in the end produce a result contrary to the goal of
making the process more efficient and less costly. In the event
that each party needs to file additional expert opinions to refute
the court-mandated expert's conclusions, there is a real
possibility that the objectives of speediness and proportionality
will not be achieved. Instead of limiting the number of experts and
the duration of the trial, a court-appointed expert may increase
the length of the trial. The debates regarding the opportunity to
appoint an independent expert, the definition of the mandate of
such expert and the selection of the expert could also generate
additional costs and delays.
This case illustrates that even when a plaintiff chooses to
leave a class action dormant for a long period of time, a
sit-and-wait approach is not always the best strategy for
defendants. In the long-run, some proactivity may be beneficial to
protect defendants' rights.
It remains to be seen if such decisions will facilitate a more
efficient resolution of complex cases in fair manner for all the
parties or will lead to the opposite result.
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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