On June 23, 2009, the Superior Court of Quebec dismissed a
motion for certification of a class action brought by
Marie-France Cyr v. Ville de Ste-Adèle &
al,1 in a water contamination suit.
The petitioner alleged that she had been psychologically
affected after two racoons and a bird were found dead in a water
reservoir servicing one of Ste-Adèle's neighbourhoods in
2007. She requested authorization to bring a class action on behalf
of the residents of that district who had suffered psychological
damage in connection with the use and consumption of potable water
contaminated because of the presence of these animals.
The petitioner argued for the certification of the class action
on the grounds that the conditions of article 1003 of the Civil
Code of Procedure (C.C.P.) were met, namely: (i) there were
identical, similar or related questions of law or fact, (ii) the
action had a color of right, (iii) a class action was the
appropriate procedure given the nature of the action, and (iv) the
petitioner was in a position to adequately represent the group
members. The City of Ste-Adèle argued that none of these
conditions had been met.
In his decision, Justice Benoit Émery retained the City
of Ste-Adèle's arguments and essentially concluded that
none of the conditions of article 1003 C.C.P. had been met. He
therefore dismissed the motion for certification with costs.
Analyzing each of article 1003 C.C.P.'s conditions, Justice
Émery noted that although the petitioner need not establish
her right by a preponderance of proof, the Court must nevertheless
find a "serious color of right" in light of the alleged
facts. Vague, general, and imprecise allegations are therefore
insufficient. In the case at hand, the petitioner claimed that due
to a lack of surveillance, two racoons and a bird were able to
access the reservoir and drown therein, resulting in psychological
injury to the users of the municipal aqueduct. Justice Émery
held that no direct causal link could be inferred between the City
of Ste-Adèle's alleged failure to monitor the reservoir
and the emergence of a psychological injury for the petitioner. At
most, Justice Émery explained, the lack of surveillance
could constitute a "condition of the damage", but cannot
be said to be its cause. The judge therefore concluded that the
facts did not seem to justify the conclusions sought.
Justice Émery also held that the petitioner had not
sufficiently demonstrated the existence of common questions, due to
the uniqueness of the injury suffered as well as its highly
subjective character. Referring to a recent Supreme Court of Canada
decision2 in which it was suggested that psychological
injury must meet a certain threshold to be compensable, Justice
Émery pointed out that even if the petitioner had actually
been traumatized, this cannot be taken to mean that the other
residents had as well.
Moreover, Justice Émery rejected the claim that a class
action was the appropriate procedure given the nature of the case,
explaining that the streets in the district serviced by the
reservoir were identifiable and contained a limited number of
residents, making a joint or mandated action possible.
Lastly, Justice Émery held that it was not sufficient for
the petitioner to merely allege that she suffered psychological
prejudice herself and that she was prepared to devote the necessary
time to the litigation in order to be a qualified representative of
the group she hoped to represent.
McCarthy Tétrault's Comments
The Superior Court decision in Marie-France Cyr c.
Ville de Ste-Adèle & al shows that courts are
taking an increasingly rigorous approach in their analysis of the
juridical requirements that must be met by a petitioner who seeks
authorization to institute a class action. The petitioner must
therefore show a "true color of right", and vague,
general, or imprecise allegations are not sufficient.
This decision is also noteworthy in its recognition that
allegations of psychological injury are highly subjective by their
nature and are therefore often ill-suited to be the subject of
class action suits.
1 2009 QCCS 2827.
2 Mustapha v. Culligan du Canada
Ltée,  2 S.C.R. 114.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).