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UPFRONT www.canadianlawyermag.com 11 QUEBEC UPDATE Class action thresholds in Quebec Recent class action decisions — by lower courts and the SCC — have clarified requirements for authorization COURTS IN Quebec have lowered the bar for class action authorization over the past few years, meaning that class actions have been on the rise. Two decisions by the Supreme Court of Canada circa 2013 — Vivendi Canada Inc. v. Dell'Aniello and Infineon Technologies AG v. Option consommateurs — interpreted the conditions for authorization in Quebec "and set the bar low," says Guillaume Boudreau-Simard, a partner at Stikeman Elliott LLP in Montreal. "Since then, it's been a low threshold." However, the bar may be raised a little due to expert oversight over class action authorizations, he says. In September 2018, the chief justice of the Quebec Superior Court instituted a class action chamber comprising 10 judges who now hear all applications filed in Montreal, the largest jurisdiction in the province. "So, we have now judges who are very, very expert in class actions, who will hear all the authorization applications," says Boudreau-Simard. "Because of that, since September 2018, we've seen maybe a more hands-on approach by the Superior Court in the authorization judgments, and the Superior Court interpret the criteria in [ways that may mean deci- sions] that could have been authorized in the past will now be dismissed at the author- ization stage. . . . "And they are not afraid anymore to rule on pure question of law at the authorization stage." There is "a more hands-on approach by the Superior Court in authorization judg- ments," which will interpret criteria in a way that will make them more likely to be dismissed at the authorization stage, says Boudreau-Simard. "Now we see a new trend of judges who will be more inclined to dismiss class action authorizations," in part as a result of Supreme Court decisions such as that in L'Oratoire Saint‑Joseph du Mont‑Royal v. J. J. in June, he says, which authorized a class action for sexual abuse against the Congregation of Holy Cross and St. Joseph's Oratory in Montreal. The Supreme Court decision in Oratoire showed that "a single, identical question of law is sufficient to meet the condition of common- ality," says Claude Marseille, a partner at Blake Cassels & Graydon LLP in Montreal. Another important class action decided recently was Imperial Tobacco Canada ltée c. Conseil québécois sur le tabac et la santé, in which Imperial Tobacco Canada was ordered to pay $6.8 billion, plus interest, after losing its appeal against the Quebec Council on Tobacco and Health, which filed on behalf of smokers. "It's a record in Quebec jurisprudence," Marseille says. The Quebec Court of Appeal's decision clarified the product liability regime in Quebec civil law, specifically when a product is affected by a "safety defect" that may cause injury to a person. The Court of Appeal sought to clarify the law regarding the contractual regime and the extra-contractual regime, he adds, "and the ruling in the case is not only on the facts but also almost a doctrinal analysis of . . . product liability in Quebec civil law." For this reason, it will have important precedential value in Quebec, Marseille says, although the decision may be appealed to the Supreme Court of Canada. And on May 6, Justice Chantal Lamarche of Quebec's Superior Court issued a deci- sion in Godin c. Aréna des Canadiens inc., dismissing a motion for authorization to bring a class action to claim payment of overtime under the Act respecting labour standards on behalf of employees paid on an annual basis. The decision confirmed and clarified the court's interpretation of s. 55 of the act, according to which a prevailing hourly wage is a condition for the application of overtime pay, in order to avoid attributing an exces- sive scope to s. 55 of the act and imposing a mandatory method of remuneration on employers. It also suggested that class actions are not the preferred procedural vehicle to enforce employees' rights. The decision "does show there are still authorization conditions to be met" in class actions, says Marseille, despite the low threshold in Quebec. "Courts will look at commonality require- ments and at the arguable case requirement. . . . It's an example that it's not just a rubber- stamping process" and that not every type of case is suited to class action, he says. Indeed, few class actions in the employ- ment sector are instituted in Quebec, says Eveline Poirier, a partner at Stikeman Elliott in Montreal, who specializes in employment law. This may be due in part to the special- ized administrative bodies in Quebec "and our system of labour relations," which is underpinned by labour unions. "We have access to this specific system of labour relations. You proceed through griev- ances, and it's a different regime," Poirier says, adding that only about two per cent of judicial applications associated with the employment sector are for class action authorization. "Courts will look at commonality requirements and at the arguable case requirement." Claude Marseille, Blake Cassels & Graydon LLP