Canadian Lawyer InHouse

13 CANADIANLAWYERMAG.COM/INHOUSE MAY 2016 By Vincent de l'Étoile Litigation and Arbitration Q uebec stands alone in the Canadian common law legal landscape with a French-inherited legal system inspired by the Napoleonic Code. Unsurprisingly, Quebec's class action regime differs from that of the jurisdictions surrounding it. Quebec's class action fi ltering phase is referred to as the "authorization," a process by which a proposed claim that does not formally exist is analyzed to be authorized (or not) to proceed as a class action. The authorization phase is a screening mechanism seeking to ensure that defendants do not have to defend against untenable or frivolous claims. The burden is low, with Quebec often being seen as a class action-friendly jurisdiction. Once the four authorization criteria discussed below are met, the court must authorize the bringing of the class action, having no residual discretion and any doubt favouring the plaintiff. The fi rst criterion is whether the class members' claims raise identical, similar, or related questions of law or fact. The underlying test is whether a class action will avoid duplication of fact-fi nding or legal analysis. Common issues do not have to predominate. A single common issue suffi ces if it can signifi cantly move forward the class members' claims. The answer to the common issue does not need to be common for everyone to the extent that all members benefi t from the action and that there is no confl ict within the class. The second criterion is whether the facts alleged seem to justify the conclusions sought. The factual allegations of the claim are to be taken as true. The plaintiff does not have to prove the justness or correctness of its suit. The third criterion is whether it would have been diffi cult for the members of the class to have joined in the same suit or conferred a mandate to a representative to act on their behalf. This criterion is best described as demonstrating that there are a suffi cient number of class members. The last criterion is whether the representative plain- tiff is in a position to adequately represent the class. This test is met if the proposed representative has the required legal interest to sue, has the required qualifi ca- tions, and is free of confl icts of interest. The authorization is usually assessed based on a lim- ited evidentiary basis, Quebec law not providing for the fi ling of motion records, affi davits, or expert reports at the authorization stage. To the contrary, the defendant has to seek leave to fi le evidence, which will be granted only if relevant to either of the authorization criteria. The authorization of a class action is thus not excep- tional in Quebec. Conversely, a judgment authorizing a class action is not determinative on the defendant's rights and grounds of defence and is not indicative of the plaintiff's likelihood of success. For years, Quebec was infamously known for its "asymmetrical" right of appeal. A judgment denying the authorization to institute a class action was appealable de plano by the plaintiff, but a judgment authorizing a class action could not be appealed by the defendant. This im- balance has been partially corrected since January 2016 with the enactment of the new Code of Civil Procedure providing the defendant with a long-awaited right of ap- peal with leave of a judgment authorizing a class action. Another signifi cant change relates to class member- ship. Historically, class membership was only available to individuals or entities having fewer than 50 employ- ees, entailing that entities could never be part of a class. This barrier has been lifted, opening class membership to anyone. Finally, new provisions relating to international lis pendens and the conduct of multijurisdictional class ac- tions are granting the court extended powers to ensure the best interests of Quebec class members are taken care of when facing competing class actions in other jurisdictions. Quebec class action activity has been steadily on the rise for the past few years. Although Quebec's new Code of Civil Procedure is not overhauling the authori- zation test and threshold, it will provide for interesting developments in class actions in Quebec. IH Quebec's own class action authorization regime A judgment authorizing a class action is not indicative of the plaintiff's likelihood of success. Vincent de l'Étoile is a partner at Langlois Lawyers LLP in Montreal.

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