In a judgment issued on February 19, 2018 in the matter of Deraspe v. Zinc Electrolytique du Canada Ltée, the Quebec Court of Appeal (Justices Dutil and Roy concurring, with Justice Rancourt dissenting) confirmed the decision of the Superior Court declaring both class representative and counsel to be vexatious litigants and disqualifying them from the case. This led the majority of the Court of Appeal to make interesting comments on the role expected of the representative in the class action context.… Continue Reading
In J.J. v. Oratoire Saint-Joseph du Mont-Royal, 2017 QCCA 1460, the Quebec Court of Appeal (Justices Gagnon, Healy and Marcotte) overturned a refusal by the Quebec Superior Court (Justice Julien Lanctôt) to authorize a class action concerning allegations of sexual abuse by members of a religious congregation. Justice Marcotte partially dissented and would have authorized the class action against only one of the two respondents in light of the absence of any compelling evidence of a link between the St-Joseph Oratory and the alleged victims. Justice Marcotte also sent a strong message to class counsel regarding the evidentiary burden to be applied on the merits and denounced the improvised approach in drafting proceedings.… Continue Reading
In Martel v. Kia Canada inc., 2017 QCCS 976, the Quebec Superior Court (Justice Chantal Tremblay) ruled on a motion by the defendant to examine class members. The motion was filed by Kia shortly after class counsel stated that they would call six previously unannounced witnesses at trial, all class members. The Court agreed that Kia should be able to examine all six class members on discovery before the case could be set down for trial and clarified the applicable test for pre-trial examinations of class members.
A class action was authorized (certified) against Kia on June 12, 2015 by the Quebec Court of Appeal (reversing the Superior Court).… Continue Reading
In Schmidt v. Johnson & Johnson et al. the Quebec Court of Appeal has qualified its approach to carriage in class action matters.
Since 1999, when that same Court rendered its decision in Hotte v. Servier, the rule in Quebec has been that the first party to file a class proceeding with respect to a particular defendant and proposed class will have carriage of the litigation. Any subsequent class proceedings will be suspended given the appearance of lis pendens.
This approach to carriage is different from that adopted in the U.S. and common law Canada, where carriage hearings are typically held in order to determine which counsel would be best suited to pilot the class action.… Continue Reading