Speaking the Class Action, Thinking the Class Action: A Discussion of Changing Trends in Quebec's Class Action Lexicon

AuthorGérald Tremblay, Q.C., Shaun Finn, and Claire Ezzeddin
Gérald Tremblay, Q.C., Shaun Finn, and
Claire Ezzeddin*
Au commencement était le verbe . . .
In the beginning was the Word . . .
— Gospel of John 1:1
The mystical power of language has long been at the centre of our cultural
tradition. It is no accident that in the book of Genesis the spoken word is
used to conjure order out of chaos, bring symmetry to formlessness, and
cast light into a world of darkness. During the 2004 US presidential-election
campaign, the Democratic Party had an unusual ally in its efforts to unseat
then-President George W. Bush. Linguist George Lakoff1 lent his ideas to
the campaign, declaring that in order to emerge victorious, the Democratic
Party would need to deliberately shift the language it used to describe its
ideals and policies. Lakoff described the election as a battle between a leader
who presented himself as a strong patriarchal father figure and a party
which had failed to fit its message to a metaphor that resonated with the
American people. Lakoff argued that the power of language and metaphor
* McCarthy Tétrault LLP. Any errors are those of the authors only. Special
thanks to Donald Bisson for his generous assistance. Please note that this is a ver-
sion of a paper which will be presented in the context of the fifth colloquium on
class actions organized by the Canadian Bar Association, Quebec Division.
1 George Lakoff & Mark Johnson, Metaphors We Live By, 2d ed. (Chicago:
University of Chicago Press, 2003).
dictated that this battle could only be won through a conscious reframing of
the language used by the Democratic Party.
It may seem unremarkable to hear the power of language discussed in
a political context. We describe political language as rhetoric, propaganda,
and spin, as if to distance it from more reliable everyday speech. The politi-
cal arena is understood to be a sphere of persuasive language, of uniquely
slippery and misleading speech. But Lakoff turned to discussing political
discourse as a late iteration of earlier studies of language more generally. In
previous works, Lakoff had argued that language functions metaphorically
and clusters the way we understanding ideas through discrete metaphors.
Lakoff and Johnson argue that, through metaphor, language traces the limits
of how concepts may be understood. Lakoff’s later work serves to illustrate
that language can be seen as both reflecting how a particular speaker relates
to or understands a particular concept and as limiting, shaping, or framing
how a concept may be thought about.
The idea that language limits our understanding of a concept may seem
intuitive in the context of legal discourse, where language is used to describe
and delineate rules. But while lawyers tend to examine language at the level
of reasoning and argument, more fundamental choices in the employment
of language may be overlooked. The metaphorical features of language and
its ability to connote rather than merely denote, are less often examined in
legal literature, despite the fact that an examination of these characteristics
of legal discourse may help to better explain legal reasoning. This paper will
focus on the evolving language that has been used in the context of Quebec’s
class action regime. An analysis of the language which animates the regime
will serve not only to elucidate the beliefs and attitudes which have shaped
its evolution, but will also serve to shed light on the state of that regime
The procedural rules which constitute the backbone of Quebec’s class
action legislation are contained in Book IX of the Code of Civil Procedure2 and
are supplemented by the Civil Code of Québec,3 as well as other statutes and
regulations. Of course, the language of the class action regime is not limited
to the language of Book IX.4 Legislators, lawyers, and scholars have all had
2 R.S.Q. c. C-25 [C.C.P.].
3 S.Q. 1991, c. 64 [C.C.Q.].
4 Regulation respecting the percentage withheld by the Fonds d’aide aux recours collectifs,
R.Q. c. R-2.1, r. 3.1, Regulation respecting the internal management and the conduct
of business of the Fonds d’aide aux recours collectifs, R.R.Q., 1981, c. R-2.1, r. 4,
Règlement sur les indemnités de présence et le remboursement des frais de déplacement
des administrateurs du Fonds d’aide aux recours collectifs, R.Q. c. R-2.1, r. 2.

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