Article originally published in McCarthy Tétrault Litigation Co-counsel (Volume 2, Issue 3) on March 25, 2009

After a class action is authorized, can the court hear and grant a motion for dismissal? Would this not be a disguised appeal? These are two questions raised by Popovic c. Montréal (Ville de), 2008 QCCA 23712 (CanLII) (available in French only), a decision that marks another step in the evolution of a more thoughtful and pragmatic jurisprudence.

In this case, the Québec Court of Appeal ruled on the appeal of a judgment rendered by the Superior Court, which had granted two motions for dismissal, thus rejecting the class action brought by the appellant, Alexandre Popovic. The first motion for dismissal was presented by Ville de Montréal and its police officers, alleging prescription of the action. The second motion was presented by John Donovan, invoking the Crown Prosecutor's qualified immunity.

On May 1, 2000, during a demonstration held on International Workers' Day, 127 demonstrators were arrested and brought before the courts. They were charged with disturbing the peace, unlawful assembly and mischief. Mr. Popovic was one of the demonstrators, and he subsequently instituted a class action in tort for moral and exemplary damages due to these arrests. The action was authorized, and after being served with the motion to institute proceedings, the defendants respectively filed the above-mentioned actions for dismissal.

The Superior Court granted the two motions for dismissal and rejected the class action as a whole. Mr. Popovic appealed the decision.

According to the appellant, the two motions for dismissal were inherently inadmissible and constituted a disguised appeal of the class action authorization judgment. In the first place, the Court of Appeal concluded that the Superior Court judge could hear motions for dismissal, in particular because it would be contrary to the interests of justice to allow a legal debate to drag on, taking all of the alleged facts for granted. In this regard, the Court of Appeal adopted the remarks of Donald Bisson, from an article which he authored, to the effect that not all motions seeking the preliminary dismissal of a class action must be rejected. For example, when the legal or factual basis of a lawsuit is doubtful, it is not always desirable to require the holding of a trial. Even though most motions for dismissal filed after the authorization of a class action are rejected, the Court of Appeal does not believe that they must all be rejected systematically; a duty of prudence is imposed. In this case, the court found weak the legal basis for the implicit prohibition of preliminary objections after a class action is instituted and authorized.

The Court of Appeal then ruled on the two motions for dismissal.

a) Prescription

The appellant submitted that the 99 demonstrators who had pleaded guilty to the offences with which they were charged should benefit from a suspension of prescription because they had made a calculated decision by filing their plea. Since this objection has no basis in law, the Court of Appeal rejected it. In the court's opinion, the suspension of the prescription of a civil action in liability for abusive criminal prosecution is inapplicable for two reasons. First, no allegation of fact was made regarding an abusive arrest or prosecution. Even if an allegation of this nature had been made, the guilty pleas entered by the demonstrators negated any claim as to the existence of an abusive prosecution or a suspension of prescription. Second, the action was also prescribed for the other demonstrators, who did not plead guilty and who likewise could not benefit from the suspension of prescription.

b) Qualified immunity

The appellant submitted that the Superior Court should have referred this question to the trial judge, due to the complexity of the objection. The Court of Appeal cited the Supreme Court's decision in Nelles v. Ontario, 1989 CanLII 77 (S.C.C.), which established that the Attorney General and Crown Prosecutors must benefit from qualified immunity and that their liability can be incurred only if the plaintiff proves four cumulative conditions: 1) the proceedings must have been initiated by the defendant, 2) the court has rendered a decision in favour of the plaintiff, 3) the absence of reasonable and probable cause, and 4) the presence of malicious intent or a principal objective other than law enforcement.

Although Mr. Donovan is not a Crown Prosecutor, he nonetheless benefits from qualified immunity. Because of the duties he assumes, his liability can be likened to that of a Crown Prosecutor while the appellant's allegations satisfy the first two criteria, no allegation of fact makes it possible to conclude or establish the last two.

McCarthy Tétrault Notes:

Apart from the application of Nelles to a Québec municipal mandatory with duties that can be likened to those of a Crown Prosecutor, Popovic shows that a motion for dismissal can be granted after the authorization of a class action, and does not thereby constitute a disguised appeal. In short, the decision points out that pragmatism — and not procedural dogmatism ― should condition the thinking of the courts before, during and after a class action proceeding.

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