Originally published in Blakes Bulletin on Class Actions,
On May 28, 2008, the Honourable Danielle Grenier of the
Superior Court of Quebec rendered a judgment authorizing the
institution of a national class action in the Province of
Quebec. Whereas national class actions hardly raise an eyebrow
in our neighbour to the south and, even in Canada, the
provincial legislature and the bench have warmed to the idea of
national class actions, Quebec remained a holdout against class
actions extending beyond its borders until the authorization
judgment in Brito v. Pfizer Canada Inc.
The proceedings underlying Quebec's first national
class action are a civil liability suit brought against Pfizer
Canada Inc. and Pfizer Inc. on behalf of every person residing
in Canada having used Depo-Provera. Depo-Provera is a
contraceptive taken by injection which is effective for a
period of three months. Depo-Provera is allegedly harmful to
the women who have taken it, as users may suffer an
irreversible loss of their bone density, which may cause
NATIONAL CLASS ACTIONS IN QUÉBEC
In recent years, various provinces – including
Alberta, British Columbia, Saskatchewan and Newfoundland
– have legislated to allow the inclusion of class
members residing outside their province. On the other hand, the
Quebec National Assembly has been deafeningly silent about
allowing or prohibiting the inclusion of class members from
outside the province.
The bench has been equally reticent to authorize national
class actions. The two judgments rendered previously on this
issue, Société canadienne des postes v.
Lépine and Hocking v. Haziza and HSBC Bank
Canada, both rendered by the Court of Appeal, have
received a chilly reception to national class actions,
especially those certified outside the province. In both
Lépine and Hocking, motions were
brought in Quebec to recognize and to declare enforceable class
action settlements that had been rendered in another province,
namely, Ontario. The Superior Court in both cases refused to
declare the class action settlements enforceable in Quebec,
decisions that were upheld on appeal. Lépine
and Hocking are currently on appeal before the Supreme
Court of Canada.
The rock upon which previous class actions had foundered and
which the present judgment seeks to overcome concerns notice to
the members residing outside the province and the jurisdiction
before which the purported class actions were brought.
In the instant case, the court did not immediately resolve
the issue of notification to the class members, preferring to
defer arguments on that point to a subsequent hearing. However,
the court declared itself satisfied that through a properly
drafted order, class members outside Quebec could be
meaningfully notified of the class action.
The court's approach to jurisdiction was twofold. On
the one hand, it concluded that it had jurisdiction over Pfizer
Canada Inc. whose head office is in the Province of Quebec. On
the other hand, with respect to Pfizer Inc., an American
company, the court concluded that Quebec was in as good a
position as any other province to exert jurisdiction, and
furthermore, by ensuring actual notice to the members of the
class, the members would be able to consent to the jurisdiction
of the Quebec Court, or otherwise exclude themselves from the
An argument that was dealt with by the court was the
quasi-insurmountable gulf between the Quebec residents of the
class, whose case is governed by Quebec law, and those
residents of other Canadian provinces who, pursuant to Quebec
conflict of law provisions, could elect to apply either the law
of the residence of the manufacturer or the law of their home
province. The court declared this apparent difficulty could be
resolved by the division of the class into subclasses by
applicable law, whether Quebec law or the law of the province
of the class members.
THE FUTURE OF NATIONAL CLASS ACTIONS IN QUEBEC
Quebec has long been considered a haven for the plaintiff
class action bar. With this recent judgment, there is no doubt
that it will, for the time being, retain this status for future
national class actions.
That being said, one wonders whether the court would have
decided differently had it not been for Pfizer Canada
Inc.'s head office located in Quebec which permitted
the court to exert jurisdiction over one of the two defendants.
One thing is sure, both plaintiff and defendant class action
lawyers will be closely following Lépine and
Hocking before the Supreme Court of Canada.
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