Bou Malhab Revisited
In Lorrain v. Petro-Canada, 2013 QCCA 332 (CanLII), the Court of Appeal of Quebec reaffirmed that a class action seeking compensatory damages cannot be brought unless the Petitioner is able to establish that he, as well as all of the putative class members, suffered harm caused by the respondent’s fault or negligence.
In this case, class action proceedings were commenced against various petroleum companies. The petitioner alleged that calibration errors at the pump disproportionately favoured the respondent companies at the expenses of consumers (i.e., in roughly 74% of cases). The Superior court of Quebec refused to authorize the proposed class action finding, among other things, that the designated persons were unable to adduce evidence demonstrating that they had received less than was bargained for by obtaining fuel from an allegedly defective pump. At best, their allegations rested entirely on a newspaper article published in the Ottawa Citizen and a study prepared by Measurement Canada.
The Court of Appeal upheld this decision, stating that the facts alleged by the Petitioner did not disclose a good colour of right. There was nothing to show that the designated persons had suffered any harm. The Court added that mere hypothesis or statistical extrapolation were unable to cure this fatal defect, and that under the circumstances it would be contrary to the interests of proportionality (art. 4.2 C.C.P.) and judicial economy to allow the case to proceed to the merits.
Although the Court of Appeal found that the judge of first instance had given too much weight to the expert evidence filed into the Court record (elements best left to the trial stage), her exposition of the relevant law, understanding of the authorization criteria and application of the law to the facts alleged were all correct.
This decision reiterates and elaborates on the principle outlined in Bou Malhab v. Diffusion Métromédia CMR Inc., 2011 SCC 9, to the effect that: “the class action mechanism cannot be used to make up for the absence of one of the constituent elements of the cause of action. A class action can succeed only if each claim it covers, taken individually, could serve as a basis for court proceedings” (par. 52).
Bou Malhab Bou Malhab v. Diffusion Métromédia CMR Inc compensatory damages Court of Appeal of Quebec fault or negligence harm judicial economy Measurement Canada Ottawa Citizen petitioner The Superior court of Quebec