Paradise Lost?: Rethinking Quebec’s Reputation as a Haven for Class Actions

AuthorEleni Yiannakis and Noah Boudreau
Pages385-417
385
“PAR ADISE LOST”?: RETHINKING
QUEBEC’S R EPUTATION AS A
HAVEN FOR CLASS ACTIONS
Eleni Yiannakis and Noah Boudreau
Abstract: Quebec has often been l abelled a “class action para-
dise” in which petitioners’ motions for authorization to in-
stitute class actions are “rubber stamped” by courts biased
against corporate defenda nts. This perception has encouraged
many defendants to reserve their time, energy, and money
to challenge such actions at a tr ial on the merits, rather than
at the authorization stage. However, Quebec defendants and
their counsel should not be entirely pessimist ic about the
likelihood of defeating a proposed class action either before
or at the authorization stage. Indeed, an examination of the
caselaw over the la st thirteen years reveals th at Quebec’s
class action regime is not as petitioner-friendly as it has been
made out to be. While the province’s class actions regime is
comparatively broad and f‌lexible where defendant s deploy
their resources in a targeted and effective manner, the pre-
authorization stage and author ization hearing can ser ve as an
invaluable opportunity to put an end to a class action before
costly trials on the merits. Ultimately, making smart choices
and investing resources at an early stage of proceedings can
end up saving defendants precious time and money.
387
“PAR ADISE LOST”?: RETHINKING
QUEBEC’S REPUTATION AS A HAVEN
FOR CLASS ACTIONS*
Eleni Yiannakis and Noah Boudreau**
A. INTRODUCT ION
Quebec is often singled out as a “class action paradise” — a “haven”
in which petitioners’ motions for authorization to institute class actions
are “rubber stampe d” by courts biase d against corporate defendants. The
perception that the authori zation stage of a class action lawsuit in Que-
bec is a mere formality has undoubtedly encouraged many defendants
to reserve their time, energy, and money in order to challenge such ac-
tions on the merits (rather th an at the authorization stage). This article
seeks to challenge the validity of this perception. In fact, an analysis of
the caselaw over the last thirteen years reveals that Quebec’s class ac-
tion regime is not as petitioner-friendly as it has been made out to be.
Indeed, far from being a “r ubber-stamp” procedure, the authorization
stage represents an invaluable opportunity for class act ion defendants to
have proposed class act ions dismissed before they reach the trial stage.
In order to provide a framework for our analysi s, Part B of this article
provides a brief backg round on the history of class actions in C anada and
in Quebec. Part C wi ll then address the perception that Q uebec is a “class
action paradise” in which ne arly all class act ions are authorized. Par t D
will exa mine cases in which motions for authoriz ation have been refused
in Quebec, and draw out identif‌iable trends in the juri sprudence. Part
E focuses on the recent decision from the Supreme Court of Canada in
Inf‌ineon Technologies AG v Option consommateurs1 and its potential impact
on the trends previously discussed. Fin ally, Part F will demonstrate how
* An excerpt of th is article was previou sly published in: Civil Writes — Canadian
Bar Assoc iation National Civil Lit igation Section Newsletter, December 2013.
** Eleni Yiann akis is a partner a nd Noah Boudreau is an assoc iate with Fasken
Martine au in Montreal. The authors wish to t hank summer student Alex andra
Lazar for her help i n the research and dra fting of this artic le.
1 2013 SCC 59 [Inf‌ineon].

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