Abusive and dilatory behavior of the plaintiffs: order to replace class representatives preferred over immediate dismissal of the class action

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In Labranche v. Énergie éolienne des Moulins, 2020 QCCS 2812, the defendants sought dismissal of the class action primarily because of the plaintiffs' failure to comply with the Court's orders regarding the appointment of a joint expert.

The Honorable Lise Bergeron, j.s.c. concluded that the plaintiffs' conduct had created an impasse that prevented the case from progressing to trial. Indeed, although they had failed in their attempt to challenge the appointment of the joint expert before the Court of Appeal on the grounds of lack of independence and an apprehension of bias, they persisted in their refusal to cooperate in the implementation of the expert's mandate which was ordered by the Court.

The Court, after reviewing the numerous failures of the plaintiffs, including the refusal to comply with court orders and to meet court-imposed deadlines, and the delays caused by these failures, characterized the plaintiffs' conduct as abusive and dilatory.

However, the Court reiterated that the dismissal of the action is the ultimate sanction and should be reserved for the most serious cases. Although plaintiffs' counsel himself admitted at the hearing that the plaintiffs had engaged in abusive behavior, there was no affidavit or evidence to conclude that the class members were supportive of the plaintiffs' abusive behaviour.

In the circumstances, in order to advance the interests of class members, the Court preferred to adopt the approach taken in Deraspe v. Electrolytic Zinc of Canada Ltd., 2018 QCCA 256 and rely on provisions in the Code of Civil Procedure applicable to matters other than class actions to withdraw the plaintiffs’ representative status.

The Court also stayed the proceedings to allow another class member to come forward and apply for leave to be appointed as representative, stating that if no other class member came forward, the Court would order the dismissal of the class action. The Court ordered the defendants to publish a notice to the members informing them of the decision.

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