The Quebec Court of Appeal overturns yet another refusal to authorize a class action; dissenting in part, a judge criticizes the “improvised” approach of class counsel an
In J.J. v. Oratoire Saint-Joseph du Mont-Royal, 2017 QCCA 1460, the Quebec Court of Appeal (Justices Gagnon, Healy and Marcotte) overturned a refusal by the Quebec Superior Court (Justice Julien Lanctôt) to authorize a class action concerning allegations of sexual abuse by members of a religious congregation. Justice Marcotte partially dissented and would have authorized the class action against only one of the two respondents in light of the absence of any compelling evidence of a link between the St-Joseph Oratory and the alleged victims. Justice Marcotte also sent a strong message to class counsel regarding the evidentiary burden to be applied on the merits and denounced the improvised approach in drafting proceedings.
The class action concerns allegations of sexual abuse committed by members of the Canadian Province of the Congregation of Saint-Croix (the Congregation) in educational institutions, residences, camps and other places situated in Quebec.
The Quebec Superior Court declined to authorize the class action on the basis that none of the conditions of Article 575 of the Quebec Code of Civil Procedure (CCP) had been met. Amongst other things, the Superior Court ruled that the facts presented before it, including approximate lists of alleged victims and tortfeasors, were insufficient to meet the required threshold of Article 575 CCP, namely that the facts alleged appear to justify the conclusions sought. In that regard, the Superior Court accepted the Congregation’s argument that it had been constituted years after the alleged abuse and could therefore not be held liable for the previous congregation’s actions. Moreover, the Superior Court concluded that there existed no allegation establishing a valid evidentiary base in support of the proof of (i) a direct fault by the Congregation and its level of knowledge of the abuse or (ii) a relationship of subordination between the Congregation and its members.
The Decision of the Quebec Court of Appeal (QCCA)
The majority of the QCCA (Justices Gagnon and Healy) held that the Superior Court had erred in its application of Article 575 CCP by failing to appreciate the specific context of the case and the liberal approach that must be applied at the authorization stage of class actions. For the majority, this error “impacted the entire analysis” of the Superior Court (para. 18, our translation). The QCCA majority mentioned that the context included the moral authority of the alleged tortfeasors, their intimate relationship with the alleged victims and the vulnerability of the class members.
The QCCA majority refused to distinguish the petitioner’s particular situation from that of the other class members, rejecting the view adopted by the Superior Court that the class action would turn into a number of mini-trials, and characterized this difficulty as “not critical” (para. 55, our translation). The QCCA majority reiterated that: “[o]nly the demonstration of a “defendable” case is necessary at the authorization stage” (para. 77, our translation). In this context, it held that any argument as to the absence of a link between the alleged tortfeasors and the Congregation, in light of its reorganization as a new legal personality, should be left for the merits.
Similarly, the QCCA held that the Superior Court erred in concluding that the fact that the list of alleged victims had not been verified and that the petitioner had not contacted these victims were grounds not to authorize; this could be dealt with at a later stage. The QCCA also reiterated that an application for authorization that meets all the other criteria of Article 575 CCP cannot be refused based on proportionality principles. The QCCA commented about the importance of being cautious when applying its own judgments rendered prior to the Supreme Court decisions in Vivendi and Infineon.
Finally, the QCCA noted that prescription is not always a mean of defence that ought to be ruled upon at the authorization stage. In the case at hand, the QCCA concluded that the petitioner’s argument that it had been impossible in fact for him to institute legal proceedings earlier was a question of fact that had to be dealt with at a later stage.
Justice Marcotte’s Partial Dissent
While she would also have authorized a class action against the Congregation, Justice Marcotte dissented as to the second respondent, the St-Joseph Oratory, in light of the absence of any compelling evidence of a link between the Congregation, its members and the Oratory:
“ I cannot convince myself that merely alleging that the abuse could have taken place at the Oratory is sufficient to engage its responsibility, in the absence of some allegation of fact that could support a direct fault on its part or a fault committed by one of its attendants, or of its knowledge of the abuse suffered by the minor children under the control of the members of the Congregation and a failure to act.
 The mere fact that the Oratory is administered by members of the Congregation does not allow for the establishment of some fault on its part towards the victims of the sexual assault committed by members of the Congregation. The Oratory rightly maintains that it is a separate entity with the mission of operating and maintaining this place of worship. Its responsibility cannot be engaged for the actions of members of the Congregation over whom it has no authority.” (our translation)
Moreover, Justice Marcotte heavily criticized class counsel for their “improvised” approach in drafting their application:
“ … I think it should be added that it would be desirable for lawyers in this context to take the necessary steps to facilitate the verification of the criteria that may give rise to an application for authorization under section 575 CCP by filing clear and well-structured applications.
 In this case, the Application is characterized by its poor drafting, particularly with regard to the alleged misconduct of the respondents in relation to the other minor victims. And what to say of the rather improvised approach of the lawyers, who have filed a list of anonymous victims as Exhibit R-8 when pleading the application for authorization, while acknowledging that they have not checked its content. This seems to have largely contributed to the judge’s decision to refuse the authorization sought.
 The difficulties of managing a class action of this magnitude must not be obscured, especially when it is instituted on the basis of an imprecise or incomplete application, and it is also worth noting that once authorized this action will involve the mobilization of significant judicial resources.” (our translation)
Although the QCCA maintains its liberal approach towards authorization of class actions, the dissenting opinion of Justice Marcotte contains helpful comments that could be used in other cases and serve as a reminder that there are limits to the lenient approach. Justice Marcotte also sends a strong warning to class counsel and exerts them to carefully draft the factual allegations contained in applications for authorization.
Significantly, Justice Marcotte insists on the fact that once a class action is authorized, plaintiffs still have to abide by the normal substantive rules governing burden of proof and evidence and that fault, causation and damages must be established with respect to each and every class member. According to Justice Marcotte, this will not be an “easy task” in the case at hand considering, amongst other things, the size of the proposed group” (paras. 142-143, our translation).