Authorization to Institute a Class Action: What Flexibility Is There for the Criteria Under Article 575 C.C.P.?
This article – co-authored with articling student Guillaume Letendre – is a modified version of a case comment initially published by Éditions Yvon Blais in July 2018 (EYB2018REP2507).
In Quebec, the burden of proof that must be met in order to obtain authorization to institute a class action is recognized as being not very onerous, as this stage is intended to be a filtering mechanism to eliminate only frivolous claims or those obviously doomed to fail.
The decision in Melançon v. Depuy Orthopaedics Inc.1 is a good illustration of this. Despite the apparent weaknesses in the application, the Superior Court authorized a class action against the manufacturers of allegedly defective hip prostheses.
I – The facts
In March 2011, the applicant Carole Melançon underwent an operation for the implantation of a hip prosthesis manufactured by the respondents Depuy Orthopaedics Inc., Johnson & Johnson Corp. and Johnson & Johnson Inc.
Following the operation, the applicant maintained that she developed several health problems. Alleging that the hip prosthesis was defective, she filed an application asking the Court to authorize a class action against the respondents.
The respondents contested the application on the grounds that none of the criteria under article 575 of the Code of Civil Procedure (the “CCP”)2 had been met, inasmuch as:
- the facts alleged did not appear to justify the conclusions sought;
- the issues of law or fact raised were not identical, similar or related, as the proposed members of the class had not all suffered the same complications;
- the description of the class was not sufficiently precise and overbroad;
- the applicant was not in a position to properly represent the class members.
II – The decision
The Court concluded on the contrary that all of the criteria under article 575 CCP had been met, and that the class action should be authorized.
A. First criterion: the action raises identical, similar or related issues of law or fact
In the Court’s view the application did raise issues of fact and law common to the members of the class3. It consequently rejected the respondents’ argument that it was impossible to establish a causal link between the prosthesis and the wide variety of complications allegedly sustained by the class members.
Due to its lack of jurisdiction over the residents of other provinces of Canada and a lack of evidence allowing it to conclude that the class members were spread out across the country4, the Court limited membership in the class to current residents of Quebec and individuals who resided there when their prosthesis had been implanted.
B. Second criterion: the facts alleged appear to justify the conclusions sought
The Court criticized the applicant for not submitting clear evidence establishing that the respondents were prima facie at fault, and for merely referring the Court to a favourable decision in another jurisdiction involving the prosthesis at issue, without even filing it as an exhibit.
Nevertheless, the Court considered that it would be unjust and premature at this stage of the proceedings to conclude that the respondents were not at fault. The Court’s initial analysis thus did not prevent it from taking a flexible, liberal and generous approach towards the alleged victims.
C. Third criterion: the composition of the class justifies a class action
The applicant was required to define the size of the class and provide information on its characteristics. However, she testified that she had not yet identified any other member of the class and had taken no steps to do so.
Despite this lack of evidence, the Court found that this criterion had been met.
D. Third criterion: the applicant is in a position to properly represent the class members
The Court found that the applicant was in a position to properly represent the members. Basing itself on the decision in Charles v. Boiron Canada Inc.5, the Court took the minimalist approach6 endorsed in that judgment, whereby an applicant having only a passive role can nevertheless satisfy this criterion.
III – Authors’ comments
The principles expressed in this decision and the Court’s conclusions are in line with the majority case law favouring greater access to class actions.
In its reasons, the Superior Court notes several shortcomings in the application, but elects to flexibly apply the test to which the application is subject in light of the most recent pronouncements of the Court of Appeal, and the evidentiary burden requiring an applicant to establish only that he or she has an “arguable case”.
In this instance the applicant will now have to prove her allegations at trial, which will no doubt prove to be a complex exercise.
This decision is also of interest in that it once again notes the Superior Court’s lack of jurisdiction to authorize a class action involving a national class, in the absence of a sufficient connecting factor with Quebec, and given the requirements of private international law. In these matters, courts cannot be satisfied with a mere semblance of jurisdiction.
1 2018 QCCS 1921
2 575. The court authorizes the class action and appoints the class member it designates as representative plaintiff if it is of the opinion that
(1) the claims of the members of the class raise identical, similar or related issues of law or fact;
(2) the facts alleged appear to justify the conclusions sought;
(3) the composition of the class makes it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others or for consolidation of proceedings; and
(4) the class member appointed as representative plaintiff is in a position to properly represent the class members.
3 It should be noted that the following question was withdrawn by the applicant during the hearing: “(d) Did the Respondents fail to inform the Group Members of the health risks associated with the use of Pinnacle Hip Implants?” The Court will thus not have to rule on this point.
4 Given the absence of a real and substantial connecting factor with a competent Quebec court, the conditions for the application of article 1348 of the Civil Code of Québec, which would have given the Court jurisdiction, were not met by the applicant.
5 2016 QCCA 1716
6 Underlying this approach is the fact that courts consider it normal that applicants’ lawyers have the predominant role in prosecuting class actions.