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

• Author: Marc-André Grou
• Pages: 83-118

83

MULTIPLE DEFENDANT CLASS

ACTIONS IN QUEBEC: RECENT

DEVELOPMENTS IN THE

JURISPRUDENCE

Marc-André Grou1

A. INTRODUCTION

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.

84 THE CANADIAN CLASS ACTION REVIEW

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-

tices.

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

defendant.

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.

B. INTEREST TO SUE AND THE CLASS

ACTION PROCEDURE

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.).