Spotlight on Québec law: Class action trends

Sylvie Rodrigue (00:05): Hello, my name is Sylvie Rodrigue and I’m accompanied by my colleague, Suzie Cloutier, and today we will discuss the exciting world of class actions in Québec.

Suzie Cloutier (00:14): Thank you, Sylvie. The class action landscape has changed dramatically in Canada over the last few years. What would you say are the top trends affecting Québec?

Sylvie Rodrigue (00:22): It's very difficult to talk about Québec in isolation, I would say that in the context of multi-jurisdictional class actions, one of the recent trends is the filing in Québec and British Columbia at the same time, as opposed to in Ontario, for example. And this is due to amendments to the Class Proceedings Act in Ontario in 2020, making it more difficult for plaintiffs to get their case certified.

And as a result, the bar has essentially moved to British Columbia. We’ve even seen some class counsel opening shop in Québec to facilitate this dual filing in Québec and British Columbia. In terms of the type of cases filed, consumer protection cases and product liability cases remain very popular. Securities class actions have slowed down, and we see an uptake in privacy, employment, and a very recent trend in the filing of proposed class actions against third-party platforms and social media.

More and more cases are going to trial. That is a trend that started a few years ago, but it's continuing to be the case. And finally, I would note that in Québec, it's extremely popular to file a class action against an entire industry.

This is a trend that started in contractual cases a few years ago, but now we see it in extracontractual, so in negligence, (in common law, the equivalent of tort cases) where we see 5, 10, 20, sometimes 40 defendants, even though the plaintiff only has a personal right of action against 1 or 2 of the defendants. We expect some guidance from the Court of Appeal maybe in 2024, most likely in 2025 on that point.

Suzie Cloutier (01:58): And as we know, many class actions in Québec are modelled after those filed in the US, other Canadian provinces and even Australia. What are the key differences between the Québec class action regime and those of the other jurisdictions?

Sylvie Rodrigue (02:10): There are far too many to list them all, but I will highlight a few, and I think it's important to understand that even if on paper the test appears similar to other jurisdictions, the interpretation to the criteria for authorization and the process leading to the authorization hearing is completely different. So first, there's no claim. In the other jurisdictions, you have a statement of claim, and then you have a motion seeking to certify the statement of claim as a class action. In Québec, the lawsuit doesn't exist.

The process is a motion for permission to file a lawsuit. So, there is very few preliminary motions as a result. For example, there's no motion to dismiss because there's nothing to dismiss, the case doesn't exist yet. There's also no evidence as of right. The defendant needs to seek leave to even examine the representative plaintiff, this is unique to Québec.

And as a result, the entire process is much more streamlined. There's not that much evidence before the authorization judge. And therefore, you get to an authorization hearing a lot faster than in the other jurisdictions. There is no preferable procedure, this is unique to Québec again. In the other jurisdictions, it's a ground of contestation, not here.

And I would say that our most important difference is on the interpretation of commonality. In Québec, only one common issue is sufficient for the case to be authorized. And as a result, it's really not the battleground. In very, very few cases, we will argue that the case should not be authorized on the basis of a lack of a commonality as a result.

The battleground is focused on the insufficiency of the allegations, although recently our Court of Appeal has lowered the bar there again. But you can attack the personal cause of action of the representative plaintiff. For example, if it's clear that the case of the plaintiff is prescribed, you could get the authorization motion dismissed on that ground.

And finally, despite more and more cases moving to trial, there's actually very few trial precedents. So, very few merits-based decisions. In Québec, the law is still very much under development.

Suzie Cloutier (04:25): And in this context, what would be your advice to clients facing class proceedings in Québec?

Sylvie Rodrigue (04:30): Fight back! Definitely fight back because one, we don't have enough cases and that's why the law is a little bit underdeveloped on the merits, but most importantly, by constantly settling immediately after authorization, our clients have a target on their back, and they become the next defendant in the next class action. And the only way to bring back some balance at the authorization stage would be to go to trial, where all the tools in the box are available to the defendants and win!