A Gentle Reminder That Traditional Class Action Principles Are Not Passé

• Author: Christine Carron
• Pages: 575-583

575

A GENTLE REMINDER THAT

TRADITIONAL CLASS ACTION

PRINCIPLES ARE NOT PASSé?

Christine Carron1

A. INTRODUCTION

The Supreme Court of Canada’s decision in Bisaillon v. Concordia

University2 will certainly spark a plethora of commentary from labour

law specialists. In a narrow decision (four to three, Justices McLachlin,

Bastarache, and Binnie dissenting), the Supreme Court held that disputes

arising over funding of the University’s pension plan were subject to the

exclusive jurisdiction of a labour arbitrator and could not be resolved by

way of a class action proceeding before the Quebec Superior Court. It is

significant that there was no disagreement among the justices as to the

principles that govern class action proceedings, collective agreements,

and the jurisdiction of arbitrators under those agreements. The justices

were divided only with respect to the application of those principles to

the specific facts of the case.

We will leave it to others specializing in labour law to opine on

whether the application of those principles to the facts at issue in the

case will stand the test of time. Instead, this paper will focus on some

of the principles applicable to class actions that were clearly enunciated

and over which there was no disagreement. The reason is two-fold. First,

these principles transcend the arena of labour law and have far-reaching

implications for class actions generally. Second, their enunciation is all

the more important given the paucity of judgments from the Supreme

Court in Quebec class action proceedings. This paucity is due largely to

the fact that judgments authorizing class actions may not be appealed in

Quebec and many defendants prefer to settle when a class action is certi-

fied3 rather than risk an adverse judgment on the merits.

1 Christine Carron is a senior partner with Ogilvy Renault LLP, Montreal.

2 2006 SCC 19 [Bisaillon].

3 The correct terminology for certification in Quebec is “authorization.” The

term “certification” will be used here nonetheless, given that it is the term most

readily understood outside Quebec.