Feb 23, 2023
In the last year, the Québec Court of Appeal has overturned eight lower court decisions that denied certification to class actions. Some lawyers are speculating that as the province’s justice system strains from underfunding and a shortage of court staff, motion judges are looking more critically at the viability of proposed class actions and considering their impact on the overtaxed system.
“Perhaps what is happening is that trial judges have a more concrete understanding of the fact that there are already too many class actions going on in Québec, be it at the authorization stage or at the trial level,” Éric Préfontaine, an Osler partner who leads the firm’s class action matters in the province, tells Law360 Canada. “There seems to be some kind of disconnect between the assessment some motion judges make” and the Appeal Court.
Normally considered a plaintiff-friendly jurisdiction, the bar for authorization in Québec is lower than in much of the rest of Canada. Four Supreme Court decisions over the last decade confirmed the regime’s “flexible,” “liberal” and “generous” approach.
“The Supreme Court had, in all of these cases, rendered decisions that essentially stated that in Québec the authorization process is a simple filtering mechanism intended to exclude only cases that have no reasonable chance of success, and unless the trial judge is convinced that the case has no chance of success, it must be allowed to proceed on its merits,” Éric explains. “So normally, it’s very rare, and it should be only the exception when a class action authorization is rejected in Québec.”
Recently, that hasn’t been the case, with lower court judges imposing a higher standard for certification on class actions.
Éric says there is a “desire” in judicial circles for the “vast, vast majority” of class actions to be certified on their way to trial or resolution through a settlement.
You can read the full article, “Class action motion judges facing pushback from Québec Appeal Court,” on the Law360 Canada website.