Executive Summaries Oct 20, 2021
Schools, COVID-19, and Class Actions: Some Lessons to Be Learned
Shaun E. Finn, Camille Rivard
In a Thomson Reuters article, our partner Shaun E. Finn comments on a recent decision of the Superior Court of Québec that authorized a class action against several private schools for their alleged failure to provide sufficient educational services during the first wave of the COVID-19 pandemic.
In Bernard v. Collège Charles-Lemoyne de Longueuil, the Superior Court authorized a class action against several private schools for allegedly failing to provide sufficient educational services during the first wave of the COVID-19 pandemic in breach of their contractual obligations towards their students' parents.
Two parents of schoolchildren sought authorization of a class action against private schools in the Montreal Metropolitan Community (at the elementary and high school levels) for failing to refund or credit tuition fees during the first wave of the COVID-19 pandemic, which occurred at the end of the 2019-2020 school year.
On March 13, 2020, the Government of Québec ordered the closing of all schools and the suspension of in-person elementary and high school teaching services. This suspension prevailed until June 30, 2020, which marked the end of the 2019-2020 school year. Most classes were replaced with online teaching during this timeframe.
On May 27, 2020, a new governmental decree changed some of the Preschool Education Plan requirements and established that the school calendar would only include 110 days dedicated to educational services, rather than 180 days as originally stipulated. However, the educational services contract agreed upon by the applicants provided that the contract period would be composed of 180 days.
As a result, from March 13, 2020 through June 30, 2020, no full-time in-person teaching was dispensed to students. The applicants paid full tuition fees for their children as stipulated in the educational services contract. Yet no refund or credit was given to them.
Four Lessons to be Learned from This Decision
While this decision appears to be at odds with the Court's ruling in Larose v. Corporation de l'école des Hautes Études commerciales de Montréal, it revolves around the quantity - rather than the quality - of the educational services at stake. Besides its interest as a class-action authorization judgment rendered in the context of the ongoing global health crisis, the decision also highlights some important legal lessons, such as:
- matters of pure law can be decided at the preliminary authorization stage of a class action;
- proportionality is applicable to assess whether the arguable case test is met (art. 575(2) C.C.P.);
- a class may be inferred where a large number of members can be presumed in the circumstances; and
- the applicant must discontinue its class action against a respondent in a timely manner if it believes that the proceeding is frivolous or untenable.
It is therefore be possible, depending on the circumstances and the contractual obligations involved, to have a class action brought against a private school for the alleged insufficiency of the educational services provided by that school.
 Shaun E. Finn, «Commentaire sur la décision Bernard c. Collège Charles-Lemoyne de Longueuil – Les écoles, la pandémie et l'action collective: quelques leçons à retenir», in Repères, October 2021, La référence, EYB2021REP3355.
Read the full article (in French only)
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