The Court of Apppeal, in Whirpool Canada v. Gaudette, 2018 QCCA 1206, has recently confirmed the decision in first instance, allowing a consumers' group a second chance to bring a class action against Whirlpool et Sears.
The Superior Court had previously dismissed an application for authorization to institute a class action taken by Sylvain Lambert1, which ruling was upheld by the Court of Appeal,2 on the basis that Mr. Lambert's action was prescribed. Lambert therefore lacked the required characteristics to properly represent the putative class.
A new application for authorization to institute a class action, brought by a Mr. Gaudette, another member of the putative class, and which bore an obvious similarity to Mr. Lambert's action, was then filed in Superior Court. Whirlpool had objected, arguing inadmissibility of the application, res judicata relating back to the preceding class action, as well as abuse of process, since Sylvain Lambert should have agreed to the substitution of another class member once he became aware that his suit was prescribed, rather than wasting judicial resources.
The Court of Appeal's Decision
The Court of Appeal, endorsing the holding of the first instance judge, dismissed Whirlpool's appeal. The Court first found that the preliminary objection dealing with prescription could not apply to the entire class, but only to Mr. Lambert's personal action. Furthermore, in order for res judicata to apply, it would have been necessary, according to the Court of Appeal, for the argument in court to have dealt with the actual substance of the dispute. In Lambert, however, the Superior Court had not ruled on the merits of the recourse as instituted, but only on the criteria of authorization, which it analyzed in the specific context of Mr. Lambert's individual action.3 As regards abuse of process, the Court of Appeal was of the opinion that the claim, in itself, was not characterized by any abusive procedure and that there was nothing to support the conclusion that the attorney involved had been negligent by not proceeding to find a substitute petitioner.
The Court of Appeal nevertheless did issue a warning to applicants who might be tempted to start re-instituting similar class actions on the rebound, until one of them was finally authorized, and recommended avoiding: [translation] "having to deal, for no legitimate reason, with new applications for authorization on a given point, filed after dismissal of a first application, and amended for the sole purpose of responding to gaps identified by the court".4
In passing, the Court also recommended that, for the sake of judicial efficiency, preliminary objections be pleaded at the same time as authorization applications, so that if such objections were dismissed, the court could immediately rule on authorization, thus reducing procedural delays.
1 Lambert c. Whirlpool Canada, l.p., 2013 QCCS 5688.
2 Lambert c. Whirlpool Canada, l.p., 2015 QCCA 433.
3 In so holding, the Court transposed the principle laid down by Justice Lebel in Noël v. Société d'énergie de la Baie-James,  2 S.C.R.. 207, cited at para 20-22 of Lambert c. Whirlpool Canada, l.p., 2015 QCCA 433.
4 Whirpool Canada c. Gaudette, 2018 QCCA 1206, para.30.
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