Passivity can be Your Enemy: Update from Quebec’s New Rules of Procedure and their Potential Impact on Class Actions

The new Québec Code of Civil Procedure (the “CCP”) has now been in force for eight months. Among the new tools available to ensure “proportionality” and “speediness” in proceedings, s. 234 of the CCP allows the judge to appoint one or more qualified experts to provide expert evidence deemed “necessary in order to decide the dispute”.  There has been much speculation in the Quebec legal community about the so-called “single expert” and the context and the type of files in which judges would agree to use their intrusive new power.  Most practitioners expected (or hoped) that it would be confined to smaller cases. In Regroupement des citoyens du quartier Saint-Georges inc. c. Alcoa Canada ltée, 2016 QCCS 2969, (“Alcoa”), Justice Carl Lachance of the Quebec Superior Court put an end to the speculation and granted Plaintiff’s motion to appoint an independent expert in the context of a class action. The judgment was not appealed.

In Alcoa, a group of roughly 700 residents sought compensation in connection with an alleged contamination caused by polycylic aromatic hydrocarbons (“PAHs”) emitted from Alcoa’s aluminum plant adjacent to the houses in Baie-Comeau, Québec.  The class action was authorized (the Quebec term for “certified”) on May 23, 2007.  Between 2007 and 2009, the Court ruled on motions to strike allegations, motions for particulars and objections. However, no judgment was rendered by the Court between October 2010 and April 2016, and according to the docket, nothing was filed between November 2011 and November 2014.

In granting the motion, Justice Lachance found that it was necessary to appoint an independent expert to speed up the progress of the proceedings, which had been dormant for so long (para. 33). The judge rejected the Defendant’s argument that this measure prejudiced its right to a full and fair defence.  The judge preserved the Defendant’s ability to file a second expert opinion challenging the conclusions reached by the court-mandated expert.  The Defendant will also have the opportunity to cross-examine the expert.

Although the mandate delineated by Justice Lachance for the expert is limited, it remained fairly expansive and touched upon a sensitive and normally highly debated subject. The expert’s role will be to identify a number of households that are representative of the class as a whole, and inspect and collect dust samples in the houses identified in order to determine their nature and composition.  The court-mandated expert will not, however, be allowed to express his opinion on the health risks stemming from the analysis of the samples collected, the fault and responsibility of the Defendant, the source of the contaminants or the necessity of cleaning the houses.

Allowing the court-mandated expert to opine on a controversial subject, i.e. what constitutes a representative sample of the class, may in the end produce a result contrary to the goal of making the process more efficient and less costly. In the event that each party needs to file additional expert opinions to refute the court-mandated expert’s conclusions, there is a real possibility that the objectives of speediness and proportionality will not be achieved. Instead of limiting the number of experts and the duration of the trial, a court-appointed expert may increase the length of the trial. The debates regarding the opportunity to appoint an independent expert, the definition of the mandate of such expert and the selection of the expert could also generate additional costs and delays.

This case illustrates that even when a plaintiff chooses to leave a class action dormant for a long period of time, a sit-and-wait approach is not always the best strategy for defendants. In the long-run, some proactivity may be beneficial to protect defendants’ rights.

It remains to be seen if such decisions will facilitate a more efficient resolution of complex cases in fair manner for all the parties or will lead to the opposite result.

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