Variation on a familiar theme – the scope of Plaintiff’s right to amendment in a class action
In Martel v. Kia Canada inc. 2016 QCCS 2097, Justice Chantal Tremblay of the Superior Court ruled on a motion by Plaintiffs to amend their claim after the class action was authorized. After going over the general principles, Justice Tremblay dismissed certain amendments on the basis that they would result in an entirely novel claim.
This decision arises out of a class action instituted against Kia Canada Inc., manufacturer of Kia vehicles, on the basis that the dealers required more intense and frequent maintenance than that provided by the manufacturer in its owner manual, on which the class members allegedly relied to decide to purchase a Kia vehicle. Petitioner argued that the manufacturer’s representations in the owner manual were thus false and resulted in unforeseen maintenance costs. Importantly, Petitioner relied on arts. 219 and 228 of the Quebec Consumer Protection Act (CPA) for its claim against Kia Canada.
Although the motion for authorization was initially dismissed by the Superior Court, the Court of Appeal reversed the decision and granted the authorization. Justice Tremblay was then assigned to oversee the class action.
Subsequently, Plaintiff Martel asked to amend both the class and the claim, which was contested by Kia on the basis that it resulted in an entirely novel claim. In essence, Martel sought leave from the Court to include additional model years in the class description; to rely on additional articles (arts. 40 and 41) of the CPA; and to remove the reference to the dealers to include members who had their cars maintained elsewhere (such as with an independent mechanic).
Justice Tremblay reiterated the principles according to which amendments in a class action should abide by the principle of “variation on a familiar theme” (variation sur un thème connu). She also underlined that the amendments should be “implicit or accessory” to the issues authorized by the Court. To the contrary, the amendments could not introduce an entirely new cause of action nor change the essence of the initial claim.
Applying these principles to the case at hand, Justice Tremblay allowed the addition of certain model years, concluding that Kia’s owner manual had not changed during those years and thus owners of 2014, 2015 and 2016 Kia vehicles had the required interest to be included in the class. However, on the more significant amendments, Justice Tremblay concluded that Plaintiff’s attempt to include arts. 40 and 41 of the CPA would result in an entirely novel claim because Plaintiff could now rely on the absolute presumption of prejudice found under art. 272 of the CPA. Justice Tremblay also held that the reference to the dealers only could not be removed, as the inclusions of non-dealers was not implicit to the issues authorized and there was no evidence that their maintenance requirements was similar to that of the dealers.
This detailed decision by Justice Tremblay to illustrate that Plaintiff’s right to amend its claim in a class action that was previously authorized is not a blank check to introduce entirely novel claims.