Is one "common issue" enough to authorize a class action in Canada? SCC grants leave to appeal in Vivendi Canada Inc. v. Dell'Aniello
On August 9, 2012, the Supreme Court of Canada granted leave to appeal from the Quebec Court of Appeal's decision in Vivendi Canada Inc. v. Dell'Aniello, a case concerning the requirement that there be “identical, similar, or related questions of law or fact” when authorizing a class action in Quebec. While this requirement is found in article 1003(a) of Quebec’s Code of Civil Procedure, an analogous “common issues” requirement applies on certification in other provinces as well. Accordingly, the Vivendi appeal could have important implications for class actions throughout Canada.
Dell’Aniello is a former employee of Seagram Company Ltd. (“Seagram”) and a former VP of one of Seagram’s subsidiaries. Vivendi S.A. acquired Seagram in December 2000. A year later, a substantial portion of Seagram’s assets were sold and it became Vivendi Canada Inc. ("Vivendi").
Seagram’s officer and employee health insurance plan (the “Plan”) covered the officers and employees, respectively, as well as their dependents. They were covered both prior to and for the entirety of their retirement. In July 1985, the Plan was revised and the following footnote was added:
“While Seagram expects to continue this Supplementary Health Insurance Plan indefinitely, future conditions cannot be foreseen, thus it necessarily reserves the right to modify or suspend the Plan at any time.”
In September 2008, Vivendi informed the individuals covered by the Plan that it would be reducing the Plan’s benefits as of January 2009. Dell’Aniello filed a motion for authorization to institute a class action, seeking to declare that the modifications were null, and obtain compensation for expenses occurred since January 2009. The class included all the retirees of Seagram who were eligible under the Plan, which amounted to approximately 250 individuals in 6 provinces. Vivendi argued that a significant amount of issues required individual analyses for each class member and thus the class action did not meet the common issues test.
The motion to authorize the class action was dismissed by the Superior Court in August 2010 due to a lack of common issues between the group members acquired rights, and the fact that the class action would involve workers in 6 different provinces.
In February 2012, the Court of Appeal reversed the decision and allowed the class action to proceed on the merits, holding that the impact on the workers acquired rights of the amendments made by the company constituted a common issue sufficient to authorize a class action. In the Court of Appeal’s view, the validity or legality of the 2009 modifications is a common issue.
Whatever the outcome of the Vivendi case, it will give Canada’s highest court an opportunity to provide further guidance upon the requirement for common (or "identical, similar or related") issues when authorizing or certifying a class action.
The Supreme Court will likely address what happens when a judge at the authorization stage cannot determine that the answer to a legal question will necessarily be the same for all members of a proposed group. Were the Court to hold that an authorization judge can dismiss such an action if the answer varies among subgroups, it would have significant ramifications for class actions throughout Canada.
It is also noteworthy that this class action is national in scope, with retirees in six provinces. In addition to reconfirming that Quebec courts may certify national class actions, this case may shed light on the impact of non-Quebec parties as class members, and the validity of national class actions in other provinces as well.
SCC Court File No.: 34800
Date Leave Granted: August 9, 2012
common issues health insurance plan