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

• Author: Gérald Tremblay, Q.C., Shaun Finn, and Claire Ezzeddin
• Pages: 157-184

157

SPEAKING THE CLASS ACTION,

THINKING THE CLASS ACTION:

A DISCUSSION OF CHANGING

TRENDS IN QUEBEC’S CLASS

ACTION LEXICON

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

A. INTRODUCTION

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).

158 THE CANADIAN CLASS ACTION REVIEW

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

today.

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.