As a third and final installment to this blog’s series on the changes, or lack thereof, brought about by the new Code of Civil Procedure (“CCP”) to the class action landscape in Québec (to see Part 1 on the new rules of recognition of Multijurisdictional Class Actions, click here and Part 2 on the definition of class members and representatives, click here), this post will consider the changes brought about by article 578 of the new CCP to provide for leave to appeal judgments authorizing a class action.
Leave to appeal allowed when authorization is granted
In 1982, respondents “lost” their right of appeal as of right of a judgment authorizing a class action, which had been the rule from 1979 in class action proceedings (1010 of the CCP).
Indeed, the current article 1010 of the CCP still provides for what is criticized as being an “asymmetrical” right of appeal: the applicant may appeal as of right a judgment dismissing its application, while the respondent is prevented from even requiring leave to appeal a judgment authorizing it.
In fact, both the draft bill and Bill 28 provided for status quo in that regard. The Québec Bar opposed this state of affairs with substantiated comments and expressed the wish that article 578 of the new CCP should be amended to avoid denying what it referred to as being “usual procedural rights” for respondents. The Québec Bar put forward, inter alia, that appeal upon leave would allow a better screening of class actions as the cases doomed to fail would be known in advance and that this would allow for greater harmonization with the common law provinces, invoking the appeal on leave rule of Ontario and the appeal as of right rule of British Columbia.
In the end, the legislator agreed with the Québec Bar, and amended draft article 578 of the new CCP to provide that the judgment authorizing a class action may now be appealed with leave:
A judgment authorizing a class action may be appealed only with leave of a judge of the Court of Appeal. A judgment denying authorization may be appealed as of right by the applicant or, with leave of a judge of the Court of Appeal, by a member of the class on whose behalf the application for authorization was filed.
The appeal is heard and decided by preference.
As per art. 578(2), the appeal is heard and decided by preference, which, in addition to the fact that class actions are automatically referred to case management by a Superior Court judge, helps to eliminate the concern of 1982 that it could be used for dilatory purposes.
In her comments, the minister of Justice wrote that the appeal should only cover the conditions of authorization (1003 of the current CCP, 575 of the new CCP). Nevertheless, it remains to be seen what criteria will be used by the Court of Appeal to allow leave, particularly in light of the usual level of deference given by the Court of Appeal to the Superior Court judges who manage cases.