Class Actions Against Multiple Defendants in Quebec: The Issues of Legal Interest and Standing to Sue

• Author: Catherine Piché
• Pages: 261-276

261

CLASS ACTIONS AGAINST MULTIPLE

DEFENDANTS IN QUEBEC:

THE ISSUES OF LEGAL INTEREST AND

STANDING TO SUE

Catherine Piché*

A. INTRODUCTION

Class action legislation was introduced in Quebec over thirty years ago.

At that time the National Assembly adopted many socially-oriented stat-

utes, including An Act Respecting the Class Action1 which added a chapter

to the existing Quebec Code of Civil Procedure.2 Yet, in all these years,

no Quebec court has ruled on the manner in which the criteria for cer-

tification should be applied to class proceedings involving violations of

the Competition Act.3 In fact, very few price-fixing or conspiracy claims

have been brought before Quebec courts, and the great majority of cases

involving antitrust violations were settled out of court.4 Thus, it remains

* Catherine Piché, LL.L., LL.B., LL.M., is an associate of the CommercialCatherine Piché, LL.L., LL.B., LL.M., is an associate of the Commercial

Litigation Group of the Montreal office of Fasken Martineau DuMoulin LLP.

Her practice focuses on class action defence work, commercial litigation, inter-

national dispute resolution, trade law, antitrust/competition law, and marketing

law.

1 An Act Respecting the Class Action, R.S.Q. c. R-21 [ARCA]; S.Q. 1978, c. 8.

2 Code of Civil Procedure, R.S.Q. c. C-25 [CCP]. In drafting this legislation,

Quebec used the American class action legislation enacted in 1966 as a tem-

plate. Ontario and British Columbia followed Quebec and adopted their own

class action legislation in 1992 and 1996 respectively.

3 R.S.C. 1985, c. C-34. Note that Quebec legislation uses the word “authoriza-

tion” but other provinces use “certification.” This article will use the two words

interchangeably.

4 See notably Option consommateurs v. Brasserie Stroh, Montreal 500-06-00185-

021 (Q.S.C.), a price-fixing case which has not yet had a hearing on authori-

zation; Acef du Nord de Montréal v. Hoechst Aktiengesellschaft (1 January 2002),

Montreal 500-06-000103-008 (Q.S.C.), a case about price-fixing of sorbic

acid which settled out of court in 2004; Option consommateurs v. Archer-Daniels-

Midland Company (1 January 2000), Montreal 500-06-000089-991 (Q.S.C.),

262 LITIGATING CONSPIRACY: AN ANALYSIS OF COMPETITION CLASS ACTIONS

unclear whether and under what circumstances claims brought alleging

such violations will be certified.

In recent years, the number of class actions filed by law firms and

consumer protection groups has reached a record high in Quebec,5 and

those brought against competing companies — otherwise known as “mul-

tiple-defendant” or “multiple-target” class actions — are more and more

popular. These kinds of class actions pose several concerns, especially in

light of the Quebec courts’ steadily decreasing amount of scrutiny at the

certification level6 and their hesitant stance on issues such as legal nexus,

interest, and standing to sue in the context of class proceedings.7

a case about price-fixing of lysine which settled out of court in 2003; Option

consommateurs v. Archer-Daniels-Midland Company (14 December 2001), Montreal

500-06-000094-991 (Q.S.C.), a case about price-fixing of citric acid which

settled out of court in 2002; Option consommateurs c. Roche Holding Ltd., [2004]

J.Q. no. 14036 (C.S.), a case about price-fixing of vitamins which settled out of

court in 2005; Acef du centre de Montréal v. Groupe Jean-Coutu (3 February 1997),

Montreal 500-06-000006-953 (Q.S.C.), a case about price-fixing of birth con-

trol pills which settled out of court in 1997). The case of Lépine c. Société cana-

dienne des postes, [2003] J.Q. no. 18920 (C.S.) [Lépine] is, to my knowledge,

the only class action alleging breaches of the Competition Act that has been

authorized by a Quebec court.

5 Quebec, Fonds d’aide aux recours collectifs, “Annual Report of 2003–2004”

[Annual Report] at 7–8. The Annual Report explains that in 2003, sixty-five

requests for funding were made to the Fonds d’aide aux recours collectifs

[Fonds]. This is the second-highest number of requests made since the Fonds’

creation. The number of files opened in 2003 was well above the historical

average and can be explained by the abnormally high number of requests for

funding made by consumer groups.

6 Indeed, in 2003 a study revealed that during the twenty-five years since the

enactment of class actions legislation in Quebec, 159 motions for authorization

were granted (25.2 percent of all files) while 137 were denied (21.7 percent

of all files) and 179 were still pending (28.2 percent of all files). For the same

period, 88 files were settled out of court (13.9 percent of all files) and 70 files

were subject to discontinuances (11.0 percent of all files). See Annual Report,

ibid. at 15. Also see the analysis of Pharmascience Inc. c. Option consommateurs,

[2005] J.Q. no. 4770 (C.A.) [Pharmascience], discussed below.

7 On the issues of legal nexus, interest, and standing to sue, this article will dis-

cuss the following cases: Teixeira (f.a.s. Dépanneur A et C enr.)(f.a.s. Dépanneur A et C enr.) c. Tetra Vision,

[2001] J.Q. no. 1219 (C.A.) [ [Teixeira]; Option consommateurs c. Assurances

générales des Caisses Desjardins Inc., [2001] R.J.Q. 2308 (C.S.) [Option consom-

mateurs]; and Bouchard c. Agropur Coopérative, [2004] J.Q. no. 13863 (C.S.) [2004] J.Q. no. 13863 (C.S.)

[Bouchard]. In some of these cases, courts have awarded the status of a repre-

sentative to a person who has no link or legal nexus with any of the defen-

dants. In others, courts have taken the opposite view.