Class actions against multiple defendants in Quebec: the issues of legal interest and standing to sue

• Author: Catherine Piche
• Pages: 261-276

CLASS

ACTIONS

AGAINST

MULTIPLE

DEFENDANTS

IN

QUEBEC:

THE

ISSUES

OF

LEGAL

INTEREST

AND

STANDING

TO SUE

Catherine

Piche*

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 Piche,

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;

Acefdu

Nord

de

Montreal

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.),

261

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;

Acefdu

centre

de

Montreal

v.

Croupe

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

Lepine

c.

Socittt

cana-

dienne

des

pastes,

[2003] J.Q.

no.

18920

(C.S.)

[Lepine]

is, to my

knowledge,

the

only class action alleging breaches

of the

Competition

Act

that

has

been

authorized

by a

Quebec court.

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.

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.

On the

issues

of

legal nexus, interest,

and

standing

to

sue, this article will dis-

cuss

the

following cases:

Teixeira

(f.a.s.

Depanneur

A et C

enr.)

c.

Tetra

Vision,

[2001] J.Q.

no.

1219

(C.A.)

[Teixeira];

Option

consommateurs

c.

Assurances

generales

des

Caisses

Desjardins

Inc., [2001]

RJ.Q.

2308

(C.S.)

[Option

consom-

mateurs];

and

Bouchard

c.

Agropur

Cooperative,

[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.

5

6

7