Can Collective Prejudice be Inferred? Biondi v. Syndicats des cols bleus regroupés de Montréal — Lowering the burden of proof for class-wide "prejudice"
If the elements of fault, damage and causal connection are established, can a court infer from the evidence that all members of a class action have suffered similar harm (or prejudice?) Yes, according to the recent decision in Biondi v. Syndicat des cols bleus regroupés de Montréal (SCFP-301) et Ville de Montréal (500-06-000265-047, September 3, 2010, Grenier J).
This was a class action on the merits instituted further to events that took place between December 5 and 12, 2004. Plaintiff alleged that the City of Montréal and the Syndicat des cols bleus regroupés de Montréal (Blue Collar Workers Union or Union) were responsible for falls that had occurred on icy sidewalks and other related injuries. She contended that failing to de-ice and spread abrasives was negligent considering the weather conditions at the time and that the pressure tactics used by the Union were illegal and had been undertaken in bad faith. Furthermore, she contended that the City had acted negligently and wrongfully, among other things, by changing the dispatching system at the very beginning of winter, by failing to give proper training to supervisors and by omitting to inform the Union of its decisions. She asked that the Union be held responsible for punitive damages and that the City be found liable jointly and severally for compensatory damages.
According to the Court, the evidence adduced easily led to the conclusion that the Union was at fault since there was negligence in the maintenance of sidewalks during the ice storm. Furthermore, circumstances were such that punitive damages were in order as the Union knew the likely consequences of its behaviour.
The City attempted to eschew its liability by stating that it did not commit any actual fault and that it could not be considered a principal since the blue collar workers were not on duty at the relevant times. These two arguments were rejected given that other cities had delayed the implementation of comparable changes. Hence, the City could not plead superior force.
The City applied for the dismissal of the class action on the grounds that causality could not be determined on a collective basis, the evidence did not show a common causal relation involving all members of the class and it was impossible to conclude that all of the injuries in question were due to the blue collar workers' pressure tactics.
In answer to this motion for dismissal, the Court first stated that the rules of evidence are the same whether they are applied to individual actions or class actions. Consequently, if the elements of fault, damage and causal connection are proven, a court may infer from the evidence that the members have sustained a similar prejudice. The Court added that it could be presumed that if an individual had suffered a fall during this period, it was most likely due to the poor maintenance of the road. The testimony of an individual about his fall would be more credible than that of the City or the Union since fault had already been established. Causality was therefore logical, direct and immediate.
As to the causal connection, the City stated that the possibility of contributory negligence had to be assessed on an individual basis by considering the type of footwear used by each class member as well as his or her knowledge of the general condition of sidewalks and other public places. The court found that these factors could be assessed in the context of individual claims made by each member.
The Court ordered the Union to pay $2M to the class members on a collective basis.
McCarthy Tétrault Notes
This decision is unexpected given the principle that a class action, a procedural mechanism, may not alter substantive law. Might Quebec courts be tempted to lower the burden of proof of the representative with regard to the establishment of an essential element of liability — namely, the existence of harm — on a purely presumptive and therefore speculative basis? To date, the approach adopted in Biondi remains exceptional and will hopefully not be followed in subsequent decisions.