Canada: Québec Class Actions: Is French Required For Settlement Approval?

On May 30, 2023, the Québec Court of Appeal accepted to hear an appeal from the Fonds d'aide aux actions collectives (the FAAC) of a judgment approving a class action settlement where the settlement agreement was drafted in English only.¹ The FAAC is a public interest governmental agency whose primary purpose is to provide financial assistance to class action plaintiffs.² In seeking to appeal the judgment approving the settlement, the FAAC argues that the drafting of the settlement agreement exclusively in the English language contravenes the Charter of the French Language.³

Judgments under appeal

The plaintiff in this class action alleges that the defendants participated in an international cartel to inflate the prices of automotive parts. The class action was authorized in 2020.

In December 2022, the plaintiff, Serge Asselin, and the defendants, AB, SKF, SKF USA, Inc. and SKF CANADA Limited (collectively SKF) executed a settlement agreement drafted in English. The Superior Court authorized the publication of a notice in the media to inform potential class members of the upcoming settlement approval hearing.

The settlement agreement provided that, if so ordered by the Court, class counsel would prepare a French translation. The FAAC requested that the settlement agreement be translated, and class counsel consequently applied to the Court for directions regarding the need for a translation of the settlement agreement.

On March 17, 2023, Justice Clément Samson ruled that it was not necessary for class counsel to prepare a translated version of the settlement agreement. Justice Samson firstly noted that the obligation introduced by Bill 96⁴ to provide a French translation of court documents has been suspended pending final adjudication by the Court of a constitutional challenge, which means that it is currently inapplicable.⁵ He also determined that a translation was not necessary in this particular file. The settlement agreement was similar to several other settlement agreements that had already been approved, all drafted in English, and no class member had challenged these settlements.

Following this decision, on April 5, 2023, Justice Samson approved the settlement agreement.⁶ On May 30, 2023, the Court of Appeal granted leave to the FAAC to appeal both these judgments.

Parties' arguments in relation to the Charter of the French Language

The FAAC alleges that the lack of a French version of the settlement agreement violates class members' fundamental rights under the Charter of the French Language. It contends that the plaintiff did not have the authority to waive the class members' right to a French version of the settlement agreement, given that the class is composed of millions of Québecers, the majority of whom are French-speaking.

In addition, the FAAC asserts that it is not sufficient to provide bilingual notices to class members. They should have access to a French version of all documents pertaining to the class action, including the settlement agreement. This would allow class members to consult the settlement agreement and contest it at the settlement approval hearing if they wish to do so.

Class counsel argues that there are no fundamental rights violations and that the March 17, 2023 judgment by which the Court declared itself satisfied with the settlement agreement prepared in English only is a management decision for which deference is due. The plaintiff also alleges that the dissemination and availability of detailed explanatory notices in French to class members allow any Québec class member to understand the scope and substance of the settlement agreement.

What to expect from the Court of Appeal

The debate before the Québec Court of Appeal will likely help determine whether there is an obligation under the Charter of the French Language to provide class members with a French version of the settlement agreement. This issue has been identified by Justice Guy Gagnon as deserving consideration from the Court of Appeal. The Court of Appeal may also consider whether a case management judge has discretion to determine whether it is necessary to provide class members with a translated settlement agreement in the context of a given class action.

We await the Court of Appeal's determination and will provide a further update in this regard. In the interim, it would be prudent for defendants and plaintiffs to draft settlement agreements in both French and English to avoid potential delays in obtaining approval.

Footnotes

1. See Fonds d'aide aux actions collectives c. Asselin, 2023 QCCA 704.

2. The FAAC is established by the Act respecting the Fonds d'aide aux actions collectives, CQLR c. F-3.2.0.1.1.

3. CQLR c. C-11.

4. An Act respecting French, the official and common language of Québec, 1st Sess, 42th Parl, Québec, 2021 (assented to on June 1, 2022), SQ 2022, c. 14.

5. We invite you to consult our August 2022 Resource for more information on this decision. The judgment on the merits has yet to be rendered.

6. Asselin c. AB SKF, 2023 QCCS 1090.

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