The Distressing Complexity of the Criteria for Authorizing a Class Action in Québec

One of the main roles of the country's highest court, the Supreme Court of Canada, is to clarify the law for lower courts, practitioners, and litigants, as well as ordinary citizens. According to section 3 of the Supreme Court Act, this Court is responsible for ensuring "the better administration of the laws of Canada" [1]. 

In its recent decision L'Oratoire Saint-Joseph du Mont-Royal v. J.J.[2], however, although the majority and dissenting justices agree on the terminology applicable to the criteria of article 575 C.C.P., their interpretation of these criteria is markedly different, such that the three civil law justices and five of the six common law justices put forward a different conception of authorization.

While this decision could have improved the understanding and application of the conditions set out by the legislature, it has instead muddied the waters in an increasingly important area of civil litigation. That the class action is now part of a growing public debate and is described by some media commentators as a "burden on the justice system", further amplifies the stakes.[3]

The Facts

J.J. (the "applicant"), anonymously claims to have been sexually abused while attending the Notre-Dame-des-Neiges Elementary School from 1951 to 1955 by two now deceased members of the religious community better known today as the Congregation of Holy Cross.[4]

The applicant alleges that he has remained silent about these assaults for several decades and has been seriously affected by them.[5] In 2011, after viewing a report on Radio-Canada's program Enquête regarding sexual assaults committed by members of the Congregation on minors while they were studying at Collège Notre-Dame du Sacré-Coeur, the plaintiff became aware that the harm he allegedly suffered was attributable to the assaults of which he had been the victim.[6]

In 2013, the applicant sought authorization to bring a class action against the Canadian Province of the Congregation of Holy Cross (the "Congregation") [7] and Saint Joseph's Oratory of Mount Royal (the "Oratory")[8] (collectively the "Appellants"), "on behalf of all victims of sexual assaults that are alleged to have been committed in various institutions in Quebec since 1940 by brothers and fathers who were members of the religious community known as the Congregation of Holy Cross". [9]

The Allegations Made by the Parties

The plaintiff accuses the appellants of failing "to act to put a stop to sexual abuse by members of the Congregation" in addition to having "discouraged victims from reporting their assilants".[10] These allegations are buttressed by a DVD of a TV programme on the sexual abuse of minors, scientific articles and a table of the alleged victims.[11].

According to the plaintiff, the appellants, even if they were aware of the sexual abuse, decided to ignore it and cover it up to the detriment of the minors who were victims of it.[12], The appellants thus "placed their own interests above those of the minor children, in violation of their mental, spiritual and physical integrity, which justifies an award of punitive damage" to the applicant and the members of the class[13].

Since the appellants exercise control over the activities of their members and allegedly allowed these abuses to continue, the applicant argues that they must be held liable for the abuses committed as principals of the brothers and fathers.[14]

The appellants, for their part, contest the authorization of a class action. Mores specifically, the Congregation submits that, since it was incorporated only in 2008, it cannot be held liable for acts which, for the most part, were committed before its incorporation.[15] It further submits that the applicant "should instead have sued Corporation Jean‑Brillant — a legal person that existed at the time of the events as “Les Frères de Sainte‑Croix”, but that today reports no establishments or employees and does not have as its objects to organize, administer and maintain a religious congregation"[16].

The Oratory claims to have no legal connection to the Congregation,[17] but rather claims to be "a distinct entity whose sole mission is to operate and maintain that place of worship". [18] In its view, the allegations in the application and the exhibits it cites are "general and non-factual" allegations.[19] The applicant’s assertion that the Oratory was a place where some of the alleged assaults occurred cannot lead to the conclusion that the Oratory was the principal of the member of the Congregation who allegedly assaulted him.[20]

Finally, the appellants submit that the applicant's personal action is irreparably forfeit as a result of the three-year prescription period provided for in article 2926.1, paragraph 2 C.C.Q. with respect to compensation for bodily harm in the event of the death of the person who performed the act.

The Decisions in First Instance and Appeal

Although the judge of first instance refused to authorize the class action because, in his opinion, none of the four criteria of article 575 C.C.P. had been met, the Québec Court of Appeal granted the applicant’s appeal and a majority authorized the class action against both appellants. According to the majority, the allegations made by the applicant and the exhibits filed in support of those allegations were sufficient to demonstrate an arguable case.

The Majority Decision of Justice Brown

Justice Brown's majority opinion concludes that the Court of Appeal’s decision to authorize the class action is  not tainted by any reviewable errors and that there is no reason why the Court should intervene to overturn it.[21]

Among other things, Justice Brown states that  “this Court has held unequivocally that the threshold requirement, both legal and evidentiary, under art. 575(2) C.C.P. is “a low one”; in other words, the applicant’s burden at the authorization stage is not “onerous”. It is clear from Infineon and Vivendi , and from a consistent line of subsequent decisions in which the Court of Appeal has faithfully followed, interpreted and applied them, that a “frivolous”, “manifestly improper” or “untenable” application does not meet this “low” threshold and must therefore be “reject[ed] entirely” (par. 61, citations omitted).

The majority opinion also concurs with the reasoning of Chief Justice Wagner and Justices Gascon's and Rowe – who, like Justice Côté, dissent with respect to the authorization of the class action against the Oratory -- as it relates to article 2926.1 C.C.Q. According to this reasoning, the applicant's personal action is neither forfeited nor time-barred as the second paragraph of the provision in question does not create any time limit for forfeiture.

A Complex Decision that Further Muddies the Waters

Saint-Joseph's Oratory of Mount Royal is both complex and polyphonic. It is this second aspect of the decision that raises the most questions.

While rejecting a more robust approach to authorization, the majority's reasoning also rejects (albeit implicitly) Bich J.'s obiter in Charles v. Boiron Canada Inc., which asks the following provocative question: "[our translation] A class action [...] is no longer a new procedural institution, it has its merits, it is known and well integrated into the legal system: is there still a need for the front door to be locked and unlocked on a case-by-case basis in this manner?"[22] The answer to this question is necessarily "yes" since, as the majority in this case observes, the new C.C.P. endorses both the authorization criteria and the "flexible" approach to authorization adopted by the Supreme Court.

In addition to the policy debate surrounding the strengthening (or completely prohibition) the authorization criteria, there is also the question of the jurisprudential assessment of these criteria in light of the Infineon and Vivendi decisions. Among other things, the Supreme Court stated in these cases that at the authorization stage, the facts alleged in the petitioner's motion are considered true. The burden imposed on the applicant at this stage is to establish an arguable case, although the allegations of fact cannot be "vague, general [or] imprecise".[23] The Court further states that "although this requirement [to demonstrate an arguable case] is a relatively low bar, mere assertions are insufficient without some form of factual underpinning".[24]

A Conceptual Divergence Between Supreme Court Justices

Despite these teachings, L'Oratoire Saint-Joseph du Mont-Royal v. J.J. illustrates the ambiguity that surrounds them. According to a majority of five justices, broad and general allegations, which are contextualized by evidence in the court record, are sufficient to justify the authorization of a class action against a corporation (religious, in this case) even when there are no facts demonstrating that it was indeed aware of the wrongful acts in question or tried to conceal them. A corporation's potential liability can be based on the mere premise that the perpetrators of these wrongful acts were under its control due to the composition of its board of directors.

For Justice Gascon, who dissented in part, (along with Chief Justice Wagner and Justice Rowe), the allegation that a wrongful act occurred on the property of a respondent is not sufficient to establish the respondent's direct liability, especially if the evidence does not specifically relate to that respondent. As for authorizing the class action against the Oratory, doing so has the effect of lowering"the minimum threshold " established in Infineon and Vivendi, "so much so that the condition set out in art. 575(2) C.C.P." would become irrelevant”.[25]

Justice Côté (dissenting) reasoning - which favours a more robust application of authorization criteria within the limits traced by Infineon and Videndi - agrees, stating that "courts must be careful not to lower the "relatively low standard" described by the Court in Infineon (para. 89) and make it a mere formality".[26] For Justice Côté, the burden on the applicant requires more than simply establishing that "the application is not frivolous or clearly unfounded".[27]
More than a divergence with respect to the application of the criteria for authorization, there appears to be a conceptual divergence among Supreme Court justices as to the nature and scope of authorization itself. For the majority, minimalist allegations supported by contextual evidence and supplemented by certain logical and legal inferences may be sufficient to establish an arguable case. But for the dissenting justices, the courts cannot fill the gaps in the application for authorization with inferences that are not firmly rooted in the allegations and evidence.

As Justice Gascon J. observes, "in Infineon and Vivendi, the conditions for authorization, including the sufficiency of the alleged facts — which are assumed to be true — must be interpreted and applied broadly, where allegations are vague, general and imprecise, a judge can neither presume the existence of something that they do not contain nor infer something that could have been included in them."[28]

Reading between the lines of an application for authorisation is not the same as presuming the "existence of something that they do not contain nor infer something that could have been included in them" [29].

This conceptual divergence is all the more striking when one considers that the majority's reasoning departs from that of the Court's three civil law judges (including Chief Justice Wagner, who wrote the Infineon and Vivendi decisions with Justice LeBel). In principle, these civil law judges, who come from a distinct legal tradition, have the role of ensuring the evolution of Quebec's distinct substantive and procedural law.

Has the Supreme Court Improved the Application of Canadian Law?

Far from clarifying or improving the law on class actions, the decision in St. Joseph’s Oratory of Mount Royal risks complicating it further by proposing different and irreconcilable conceptual models. Although the majority's reasoning is now the law of the land in Québec, this reasoning may encourage the authorization of class actions based on assertions, legal conclusions, and evidentiary elements that are equally lacking in tangible facts. This makes the line between judicial stewardship and mere rubber stamping even more difficult to draw, thereby complicating the role of judges of first instance, who must hear and decide applications for authorization, and practitioners, who must counsel and represent their clients effectively.