Multiple Defendant Class Actions in Quebec: Recent Developments in the Jurisprudence

AuthorMarc-André Grou
Marc-André Grou1
On 18 October 2006, after close to nine months of deliberation, the
Quebec Court of Appeal rendered its much anticipated decision in the
matter of Bouchard v. Agropur Coopérative,2 confirming the decision of
Justice Jacques Viens of the Superior Court who had refused to authorize3
a class action on behalf of Quebec consumers against several Quebec milk
processors and the Quebec Attorney General.
The Court of Appeal judgment is interesting on many fronts and
has already been cited by parties in a number of debates concerning
various aspects of the class action certification procedure. But the pri-
mary reason for the legal community’s anticipation of the judgment was
that it promised to offer the Court of Appeal’s first direct statement on
whether a representative plaintiff could institute a class action against
multiple defendants despite the absence of a personal claim against each
of the defendants, an issue which the Quebec Superior Court had not yet
resolved unanimously.
At issue was the future of a particular form of class action that
was becoming increasingly popular in Quebec. Typically, a class action
involves a representative plaintiff who, feeling that a defendant or defen-
dants have somehow or other infringed his rights, seeks to exercise a
1 Marc-André Grou is a litigation associate in the Montreal office of Osler,
Hoskin & Harcourt LLP, specializing in class action litigation.
2 Bouchard v. Agropur Coopérative, [2006] R.J.Q. 2349 (C.A.) [Agropur].
3 Despite significant differences which are beyond the scope of the present paper,
the authorization procedure under Quebec law is essentially the equivalent of
the certification process in common law jurisdictions. The term “certification”
will be used throughout to comply with common usage outside Quebec.
recourse in his own name as well as in the name of others against those
same defendants. In recent years, however, some plaintiffs have shown
more ambition and sought to extend the reach of the class action pro-
cedure. Rather than limiting their recourses to those defendants against
whom they allege a personal claim, they have sought to extend their
recourses to other defendants in the same industry who, although they
have not injured them personally, shared the allegedly prohibited prac-
The stakes were high. From the perspective of corporate defendants,
this type of industry-wide class action is a scary beast. It considerably
increases the risks of class actions being launched against a company
because it allows a dissatisfied customer of one company to sue another
company in the name of customers who have not manifested an intent to
sue. Moreover, plaintiffs can then use certification to embark on a fishing
expedition in order to collect evidence of a violation by untethered defen-
dants, evidence that is not in their possession at the time of launching the
class action. Also, the absence of a class representative who has had deal-
ings with the company can pose serious challenges to the defence who
may find itself arguing in a vacuum. For instance, the defence may be
restricted in its ability to cross-examine efficiently an individual who has
had no experience with the company’s products or services. Finally, being
ordinarily used to dealing with each other as competitors in the market,
co-defendants in industry-wide class actions can make uncomfortable
bedfellows. The presence of potentially competing interests, issues of
confidentiality, and the involvement of different defence teams can all
complicate cooperation between defendants.
The legal community was rewarded for its wait. Although it found
other reasons sufficient to dismiss the appeal, the Court of Appeal, rec-
ognizing the importance of the debate before it, addressed the issue and
stated unequivocally that Quebec law does not permit the certification of
a class action against a defendant in the absence of a class representative
who has both standing to sue and a personal cause of action against that
The Court of Appeal judgment in Agropur thus resolved an ongoing
debate on an issue of primary importance in the context of a class action
procedure that is gaining in popularity and importance in our judicial
system. The purpose of the present paper is to analyze this important
judicial development and to compare the approach adopted by Quebec
courts in Agropur and the judgments that have followed since with the
VOL UME 4, No 1, JUlY 2007 85
approaches taken on the issue by the courts in the United States and the
other Canadian jurisdictions.
The concept of standing or interest to sue as it called in civil law is a fun-
damental concept of the modern judicial system as a forum for the reso-
lution of disputes between private litigants. In Quebec, this fundamental
principle is codified in Article 55 of the Code of Civil Procedure, under
Title III of Book I, titled “Rules Applicable to All Actions”: “Whoever
brings an action at law, whether for the enforcement of a right which
is not recognized or is jeopardized or denied, or otherwise to obtain a
pronouncement upon the existence of a legal situation, must have a suf-
ficient interest therein.”4
The importance of a sufficient interest in the context of conventional
private litigation requires little explanation. The plaintiff’s interest is the
raison d’être of the private lawsuit. Without it, there is simply no right to
the action. The question can therefore not be evaded. Accordingly, the
courts have made it a principle of public order5 and stated that its absence
can be invoked at any stage of the proceedings and even raised proprio
motu by the court.6
The nature of this interest is not defined by the CCP. It must be
interpreted by the courts in accordance with the rules of civil law. In that
respect, a seminal statement is found in the Jeunes canadiens decision in
which the Quebec Court of Appeal states inter alia that the claimant’s
interest must be, among other things, direct and personal:
Interest is the advantage which the plaintiff will derive from the recourse
he exercises, assuming it is well-founded. Subject to exceptions specifi -
cally provided by statute, the rule of the common law is that, to be suf-
ficient, the interest must be, among other things, direct and personal.
Authors Solus and Perrot have this to say on the matter:
4 Code of Civil Procedure, R.S.Q., c. C-25, Art. 55 [CCP]. Closely related is the
prohibition against pleading in the name of another (Art. 59 CCP).
5 Électrique Glaswerk inc. v. Axa Boréal Assurance inc., [2005] R.J.Q. 2518 (C.A.).
6 Jeunes canadiens pour une civilisation chrétienne v. Fondation du Théatre du
Nouveau-Monde, [1979] C.A. 491 at 493 (C.A.) [Jeunes canadiens]; 2742381
Canada inc. v. Fermes Brimmond Inc., J.E. 2001-367 (S.C.).

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