Québec Beekeepers’ class action is authorized
On February 20, 2018, the Québec Superior Court granted an application on behalf of the beekeepers of Québec for authorization to institute a class action in Martineau c. Bayer Cropscience inc. against pesticide manufacturers for damages allegedly suffered by the beekeepers as a result of the harm caused by insecticides that were allegedly designed, manufactured, marketed, distributed and sold by the Defendants.
The Superior Court’s concerns and findings
The battleground of this case centers on the second requirement of article 575 of Québec’s Code of Civil Procedure: “[…] the facts alleged appear to justify the conclusions sought.” The Court was concerned by the “somewhat vague nature of some of the allegations and the fact that certain allegations do not appear to be true.”
For example, the Court found that, contrary to the Plaintiff’s allegations, the Defendants did not hide the potential toxicity of their products towards the Québec bee population. Further, the allegations of negligent research and manufacture as well as the use of the insecticide products at issue, neonicotinoids, as contrary to sustainable pest management were lacking in precision.
Despite these findings, the Court held that the Plaintiff presented a “sufficiently defendable case”, and in particular noted that the appropriate method of using the neonicotinoids at issue seems to have evolved over the class period (from 2006 to the present), a factor in favour of the Plaintiff’s case. In fact, the Pest Management Regulatory Agency (“PMRA”) questioned the sustainability of continued use of the neonicotinoids at issue, which resulted in changes to the practices for their application in the 2013 growing season. The Court found this evidence to be sufficiently probative to meet the applicable threshold for authorization, raising multiple questions and potential issues regarding the Defendants’ role during this time period.
The interplay between regulation and alleged liability
The PMRA regulates the Defendants’ activities in the bee breeding industry. One of the arguments by the Bayer Defendants included that they have fully complied with the PMRA’s requirements. In response, the Court held the following:
[…] in the Court’s view neither the fact that the neonicotinoid products are sold in a controlled environment, nor the fact that Defendants may have fully complied with the PMRA, eliminates the possibility that [the representative plaintiff] may be able to demonstrate that Defendants were at fault in the manufacture and sale of the products.
This finding serves as a word of caution to defendants: companies are still open to allegations of liability and in turn, authorization of class actions alleging fault, even when they have fully complied with a regulator’s requirements.
A hive of considerations
Important to note, although the Court found that the Plaintiff’s evidence did not clearly resolve the issue of whether the Defendants manufactured the neonicotinoids that allegedly caused damage to the Plaintiff’s bees, the Court “read between the lines” and found a “reasonable demonstration” that residues of products manufactured by the Defendants were found in the Plaintiff’s dead bees. This case is an example of the relatively low threshold for authorization that representative plaintiffs are currently required to meet in Québec: namely, under this approach, the Court effectively assumes that the petitioner will be able to prove the allegations at trial, as long as they are not too vague, general or imprecise, amounting to speculation or hypothesis or are clearly contradicted by uncontroverted evidence.
In addition, it is important to stress that at trial, the plaintiff continues to have the burden to establish the merits of its case on the balance of probabilities, and this civil standard of proof applies across Canada. As such, it would not be easier for plaintiffs to succeed in Québec on the merits than in other Canadian jurisdictions.
Changing norms in the industries in which prospective defendants operate may also play a role in a plaintiff’s favour when launching a class action. Where a plaintiff can reasonably demonstrate evidence of a regulator’s concerns about the usage of a product at issue over time, this may persuade a court that triable issues exist regarding the liability of defendants.