Comments on Bernard v. Collège Charles-Lemoyne de Longueuil Inc. - Freedom of Speech and Right to Opt-Out
The authors summarize this case, rendered on June 22, 2023, in which the Court of Appeal upheld the decision of Justice Pierre-C. Gagnon, which, among other things, denied a motion to invalidate class members' opt-out forms and to reopen the opt-out period. This case is part of an authorized class action against all private elementary and high schools in the Montreal Metropolitan Community seeking partial reimbursement of tuition fees paid for the 2019-2020 school year because of the suspension of classes due to the COVID-19 pandemic.
In the first instance, the judge had denied the plaintiffs' motion to invalidate the opt-out forms, strongly condemning the defendants' active campaign to encourage class members to opt out of the class action. Plaintiffs sought to reopen the opt-out period to prohibit any interaction between defendants and class members. The opt-out period is important because it allows any eligible person to opt out of the class action.
Dissatisfied with the judge's conclusions, the plaintiffs appealed, arguing that the decision was tainted by several errors. Specifically, the plaintiffs alleged errors in the presentation of evidence and in concluding that the disputed communications were not inappropriate.
After finding that there was no reviewable error, the appeal was unanimously dismissed by a panel consisting of Justices Mark Schrager, Geneviève Cotnam, and Stéphane Sansfaçon in the case of Bernard v. Collège Charles-Lemoyne de Longueuil Inc..
I – THE FACTS
The plaintiffs are parents of students who attend the defendant's schools. They seek partial reimbursement of the tuition fees paid for the 2019-2020 school year on the grounds that, between March and June 2020, the COVID-19 pandemic disrupted student attendance and instruction, and that the tuition fees had not been adjusted accordingly. In this context, the class action was authorized on July 16, 2021. The notice, drafted jointly by the parties, was approved by the Court, which ordered that it be sent through the usual channels of communication between the parents and the defendants. All but seven of the defendants sent the notice within the required time period.
It appears, however, that several of the defendants did more than simply e-mail a copy of the notice, as required by Court. They also took the opportunity to encourage parents to exercise their right to opt out by sending a second e-mail shortly after the first one. This second email could take several forms. It could be a reminder of the opt-out deadline, an e-mail thanking parents who had opted out and inviting those who had not yet opted out to do so, or an e-mail raising arguments against the class action. Some of the arguments included the fact that the defendants are "non-profit organizations that rely on the fees collected each year to make ends meet, hence the negative financial impact in the event of a court order for reimbursement," that "parents may be charged additional fees to cover the reimbursement [of the class action]," that "a significant percentage [of the class action recovery] will be collected by the attorneys who brought the lawsuit for their own benefit," and that the defendants had made efforts to educate the public.
Upon discovering these communications, the plaintiffs moved the courts to halt these interactions, invalidate all opt-out forms, and reopen the opt-out period to prohibit any further communication between the defendants and class members. The defendants, in response, claimed their right to free speech and questioned the legal interest of the plaintiffs' counsel in representing all class members. They asserted their right to address the parents involved in the class action to encourage them to opt out by informing them of the potential negative consequences of the action.
II – DECISIONS
A. Decision of the Superior Court of Quebec
The Superior Court rejected the argument that the plaintiffs lacked the legal interest necessary to bring their claim. Instead, the judge found that the plaintiffs were entitled to petition the court to ensure smooth proceedings of the class action when difficulties arise.
On the merits of the claim, the judge noted that the Quebec courts had never directly addressed the issue of the legality of an activist campaign aimed at encouraging class members to opt out of a class action. To date, decisions on the subject have only scratched the surface. The judge drew on Ontario and U.S. case law, particularly the teachings of Ontario Superior Court Justice Paul M. Perell in Del Guidice v. Thompson, to provide guidance on the interaction between class members and the various parties. According to the judge, the absence of fundamental differences between Ontario and Quebec law on the issue of opting out justified the application to Quebec of the doctrines developed in Ontario. The Superior Court, per Justice Pierre-C. Gagnon, established the following principles:
- Defendants may exercise their freedom of expression by addressing the members of the class. This freedom is, of course, not absolute. It must be exercised with discretion.
- Intimidating or threatening conduct that involves misinformation or misrepresentation must be sanctioned.
- To succeed in a motion to invalidate the notice, enjoin communications, and restart the opt-out process, plaintiffs must demonstrate that the defendants crossed the line. Vague fears or apprehensions will not suffice.
- Prudent defendants seeking to contact class members should first consult with the opposing party and, if necessary, submit any disagreement between the parties to the court for resolution.
- Whether before or after class certification, defendants are under no obligation to consult with the plaintiffs before communicating with class members. However, failure to do so risks court intervention afterward to protect class members'
In this case, the plaintiffs had to prove that the defendants' communications were unreasonable and constituted undue pressure or coercion. Although the Court found some communications on the borderline of acceptability and a significant number of opt-outs filed, the Court concluded that the plaintiffs failed to meet their burden of proof due to the absence of admissible evidence. Indeed, the mere presentation of emails received by class counsel, without anyone testifying or signing an affidavit alleging threatening, intimidating, or deceptive conduct, is clearly insufficient. Hearsay evidence remains inadmissible.
The judge did, however, order the reopening of the opt-out period for one of the defendants who failed to send notice to class members within the required time period.
B. The Court of Appeals' Decision
The Court of Appeal begins its analysis with an important reminder of the special nature of the procedural vehicle that is the class action, and of the court's supervisory power to ensure its integrity. Thus, any party who feels that there has been a "breach of the balance intended by the legislature" is legitimately entitled to petition the Court for an appropriate remedy.
Regarding the insufficiency of evidence to grant the plaintiffs' claim, the Court of Appeal upholds the first instance decision in the absence of a material error. The evidence submitted in support of the claim consists of various e-mails that do not provide the sufficiently serious guarantees required by article 2870 of the Civil Code of Québec to be admissible.
With respect to the content of the communications between the defendants and the class members, the Court of Appeal recognized that no specific legal provision governed such interactions. However, it reiterated a limitation established in Filion v. Québec (Procureure générale): the defendants may not contact class members directly after the end of the opt-out period. As for the communications that take place during the opt-out period, the Court of Appeal concludes that they must be permitted if they respect "the delicate balance between freedom of expression [...] and the principles inherent in the class action regime." In other words, the Court recognizes the relevance of these communications if they serve the purpose of informing class members so that they can make a free and informed decision as to whether or not to participate in the class action. Courts may sanction any approach or message that amounts to misinformation, threats, any form of coercion, or otherwise compromises the integrity of the opt-out mechanism.
III - COMMENTS OF THE AUTHORS AND CONCLUSION
This decision represents one of the few instances in Quebec addressing the possibility of a defendant communicating with class members during the opt-out period to encourage them to opt out. While Trottier v. Canadian Malartic Mine allowed a defendant to make individual settlement offers before the opt-out period ended, the commented decision broadens the scope of that ruling. Defendants may now also communicate directly with class members to persuade them to opt out, as long as their communication focuses on making valid points and avoids undue pressure, misinformation, or threats.
In the digital age, where email and social networking are common means of communication, this case finally provides much-needed clarity on interactions between class members and defendants. The clear and concise guidance provided by the rulings is invaluable. They provide important, if not necessary, insight into the interactions that may multiply between parties and class members during the opt-out period. As a result, Ontario and U.S. case law are no longer the sole sources of solutions.
In our opinion, however, this decision will not "open a breach that is likely to have a lasting impact on the dynamics of class actions in Quebec," as the appellants claimed. The very specific context of this case, in which the defendants, as the schools attended by the class members' children, have a rather unique and privileged relationship with the latter, meant that it was normal and even customary for the parties to communicate with each other in parallel with the judicial process. It would have been odd for the defendants to remain completely silent about the ongoing litigation. This pre-existing and customary channel of communication, as well as the high degree of familiarity between the parties, does not exist in most class actions, regardless of the subject matter. While future defendants may attempt information campaigns to encourage opting out, it is likely that such communications will be appropriate and informative, considering the guidelines established by the judgments and the Court's authority to intervene. Given the guidelines established by the judgments and the Court's power to intervene, it would be very unwise for a defendant to think that threatening and intimidating communications will confer any advantage.
* Samuel Lepage is a partner in McCarthy Tétrault’s Litigation Group. His practice includes complex commercial litigation, real estate litigation, cross-border matters and class actions. Bianca Annie Marcelin is an associate in the same group. Her wide-ranging practice focuses on civil and commercial litigation, real estate, class actions as well as professional and medical liability.
 Bernard v. Collège Charles-Lemoyne de Longueuil, 2022 QCCS 555.
See art. 2870 C.C.Q. : 2870. A statement made by a person who does not appear as a witness, concerning facts to which he could have legally testified, is admissible as testimony on application and after notice is given to the adverse party, provided the court authorizes it.
The court shall, however, ascertain that it is impossible for the declarant to appear as a witness, or that it is unreasonable to require him to do so, and that the reliability of the statement is sufficiently guaranteed by the circumstances in which it is made.
Reliability is presumed to be sufficiently guaranteed with respect in particular to documents drawn up in the ordinary course of business of an enterprise, to documents entered in a register required by law to be kept, and spontaneous statements that are contemporaneous to the occurrence of the facts.