A new criterion for proposed Quebec class actions?

In Dufresne c. Ville de Montréal,¹ Justice Donald Bisson rejected plaintiffs’² application for authorization to institute a class action against the defendants³ for multiple floods that had taken place since 2013 in two of Montreal’s boroughs. In his judgment, Justice Bisson summarized the state of the law at the authorization stage, and, in so doing, suggested that a new criterion is applicable to the analysis, being: where an application for authorization involves several similar causes of action under a single statute, it is not necessary to assess the appearance of right of each one – it is sufficient to assess just one of them.

Context

The plaintiffs are property owners and residents of the “affected areas” of the city of Montreal and suffered damage to their properties due to floods that had occurred in the past decade. The plaintiffs alleged that the defendants were responsible for the damage to their properties, as it was a result of the dilapidated state of the inadequate and poorly maintained sewers and drainage systems. According to the plaintiffs, the defendants had control over flood drainage and had not taken measures to prevent their consequences, thereby intentionally and negligently failing to protect citizens therefrom. The plaintiffs consequently claimed compensatory damages for property damage and loss of revenues, personal injury for respiratory problems, and moral damages resulting from stress. 

Citing decisions Homsy c. Google⁴  and Leduc c. Elad Canada inc.,⁵ Justice Bisson summarized the criteria applicable at authorization and expressly identified a “new criterion.” Namely, when an application for authorization advances several similar causes of action under the same statute, such as the Consumer Protection Act⁶ (CPA) it is not necessary to assess the appearance of right of each, but only of one of them; the rest will be analyzed on the merits.

The plaintiffs’ application for authorization was rejected. Justice Bisson ruled that the plaintiffs had failed to demonstrate an appearance of right in respect of any of the causes of action alleged. He also found that the criteria at article 575(1) regarding common questions had not been met.  

Authors’ comments

The judgment in Dufresne does not offer further insight on the new criterion. However, Justice Bisson did reference the Court of Appeal’s decision in Leduc⁷ as the apparent source of this new criterion. In that case, the Superior Court rejected the class action for lack of common questions. The plaintiffs appealed, and the Court of Appeal overturned the first instance judgment, noting that article 6.1 of the CPA had not been properly taken into account in the initial judgment. In this context, the Court of Appeal stated:

[25]      [Translation] However, insofar as the Court is of the opinion that this criterion is met, without having recourse at this stage to the CPA, it is neither useful nor necessary to determine the extent to which these provisions apply in order to decide the fate of the application for authorization. In fact, it is premature to do so, since the determination of whether or not there has been a possible violation of the sections of the CPA will depend on the assessment of the evidence on the merits.

[26]      Accordingly, beyond the error in the judge's general assertion regarding the exclusion of the application of the CPA, there is no need here for the Court to further examine the applicability of sections 219 and 228 at this stage.⁸

Thus, it is not clear that the Court of Appeal intended to create a new criterion, as suggested by the Superior Court in Dufresne. It is obiter that is applicable to the specific facts before the Court in Leduc. Indeed, the Court of Appeal had concluded that the criterion at article 575(1) was satisfied, and it was unnecessary under the particular circumstances of the case to embark on a detailed analysis of the appearance of right of each cause of action that had been alleged. 

Furthermore, we note that after identifying the “new criterion” at the outset of his judgment in Dufresne, Justice Bisson proceeded to nonetheless analyze each of the five causes of action invoked by the plaintiffs, commenting on the specific articles of the statutes pleaded by the plaintiffs, despite the fact that certain ones could be considered as “similar causes of action under the same statute.” In particular, he noted the plaintiffs had failed to demonstrate, prima facie, that they had met the test applicable to each of the sections alleged under the Quebec Charter in order to demonstrate infringement. He commented that it is too easy to enumerate sections of the Quebec and Canadian Charters without alleging the facts underlying the violations.⁹

We believe that the methodical analysis performed by Justice Bisson in Dufresne in fact reflects the current state of the law as it pertains to the authorization criteria in Quebec when determining whether the facts alleged justify the conclusions sought under article 575(2). Defence counsel can therefore rest assured that they can continue raising arguments to oppose each individual cause of action alleged by plaintiffs when challenging the appearance of right at authorization.

The authors would like to thank Vera Katkova, articling student, for her contribution to preparing this legal update.