Vivendi Canada Inc. v. Dell’Anniello, 2014 SCC 1 – Quebec’s Uncommon Approach to Commonality

A single common question can justify the authorization (certification) of a class action in Quebec provided that it

“can serve to advance the resolution of the litigation with respect to all the members of the group” (par. 4)

In assessing the sufficiency of the common question put forward by the petitioner, the motions judge should look to this criterion alone and not ask  whether the common question necessarily leads to a common answer.

As the Supreme Court of Canada recently explained in Vivendi:

“The commonality requirement does not mean that an identical answer is necessary for all the members of the class, or even that the answer must benefit each of them to the same extent.”

Rather, according to the Supreme Court,

“It is enough that the answer to the question does not give rise to conflicting interests among the members” (par. 46)

Unlike in other Canadian jurisdictions, class actions can be authorized in Quebec where:

  1. there is only one common question that is “not insignificant” to the outcome of the litigation;
  2. that common question does not predominate over individual questions; and
  3. nuanced answers could eventually be provided to the common question in the context of a trial on the merits.

The Supreme Court also made it clear that proportionality, codified at article 4.2 of the Quebec Code of Civil Procedure (C.C.P.), is not an autonomous touchstone that can defeat a class action that would otherwise meet the four conditions for authorization (art. 1003 C.C.P.). Instead, it is an underlying principle that should guide the courts in their appreciation and application of the existing conditions (commonality, good colour of right, procedural appropriateness and adequacy of the proposed class representative).

Furthermore, the Supreme Court expressed the opinion that the fact class members reside in different provinces – and may therefore be subject to different statutory regimes – is not a bar to authorization unless there exist relevant distinctions between these regimes.

Vivendi demonstrates that Quebec’s approach to commonality is unique. The pleading standard is more attenuated than that of the common law provinces, as is the legal analysis. While the bar may be lower than elsewhere, however, it would be incorrect to say that nothing is asked of the petitioner. The Supreme Court did not say that any common thread will do, no matter how frayed or tenuous. The common question must advance the proceeding as a whole and must provide a benefit to every class member. Determining precisely what this means will be up to the motions judges, who will now be expected to adapt the Supreme Court’s reasoning to the specific facts and claims they are called upon to “filter.”

authorization CCP certification class action common answer common question commonality requirement criterion procedural appropriateness proportionality Quebec Quebec Code of Civil Procedure Supreme Court of Canada Vivendi

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