More Oil for a Slippery Slope: Quebec Court of Appeal Authorizes Class Action Against the Vehicle Manufacturer KIA
On June 12th, in Martel c. KIA Canada inc. (2015 QCCA 1033), the Quebec Court of Appeal reversed a ruling of the Superior Court which had refused to authorize a class action against the vehicle manufacturer, KIA, for allegedly misrepresenting the frequency of servicing necessary for the proper maintenance of its vehicles. Looking for an economical vehicle, the Petitioner, Thérèse Martel, had purchased a KIA based on representations made in its official manual that servicing would be required only every 12,000 km. Having brought her vehicle in for its first inspection, however, Ms. Martel was informed by the dealer that more frequent servicing was required by Quebec’s harsh climate. At her second inspection, she was informed that an oil change was required more frequently still. The Petitioner instituted a motion for the authorization of a class action on behalf of all purchasers of KIA vehicles who had been victims of false representations contained in the manufacturer’s manual.
While it did find that the facts alleged appeared to justify the conclusions sought, the Superior Court nevertheless refused to authorize the action, primarily due to the fact that the Petitioner had failed to carry out the necessary inquiry in order to ascertain whether other class members actually existed. In particular, the Superior Court found that the Petitioner had failed to prove that other buyers of KIA had, in fact, been misled by the manufacturer’s manual.
The Court of Appeal reversed the decision, basing itself on the Supreme Court of Canada’s rulings in Infineon Technologies (2013 SCC 59) and Vivendi ( 1 S.C.R. 3) , pursuant to which a petitioner is absolved of the need for any such proof, requiring instead a simple demonstration of a defensible cause - the Court’s role being simply to eliminate evidently frivolous actions. Recalling Vivendi, the Court of Appeal stressed that even where circumstances varied from one class member to another, a class action could be authorized as long as all class members shared at least one not insignificant question. The Court also stated that the extent of inquiry necessary regarding other class members depended on the circumstances of a given case, and that it was not particularly useful to identify other class members in cases where it was evident that they existed. Finally, the Court emphasized that in the context of a prohibited practice under the Consumer Protection Act, the prejudice in question was to be evaluated objectively, and not subjectively in terms of the experience of each affected consumer. The question was essentially that of whether a false representation had been made and whether this constituted a prohibited practice. In the case at hand, the Court ruled that those who considered themselves to have been injured by the alleged false representation could bring forward a claim. The Respondent Kia was presumed to possess sufficient data to estimate the number of consumers concerned and was also better placed than anyone to identify them.
The decision confirms the unfortunate ongoing trend toward leniency at the class action authorization stage in Quebec. Moving beyond (or, rather, beneath) the “one not insignificant question” threshold, the Court of Appeal has absolved the petitioner of the usual duty to identify a few others who share her woes. These woes can now seemingly be presumed from a given set of circumstances, just as the class representative can be presumed to possess sufficient data to estimate the number of consumers affected. Despite the fact that the authorization stage obeys to its own set of rules, the question that begs to be asked is whether these presumptions would constitute serious, precise and concordant presumptions as per the requirements of article 2849 of the Civil Code of Quebec. Without something a little more precise, it seems, woes deepen for the targets of prospective class actions.
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