The “Arguable Case”: A Troubled History with an Uncertain Future

In an article published by Thomson Reuters^[1], our partner Shaun E. Finn addresses the issue of the most important criterion for class action authorization in Québec – that of the “arguable case” – and suggests possible solutions.

The relevance, scope and application of this authorization criterion have been vigorously debated ever since paragraph 575(2) of the Code of Civil Procedure ("C.C.P.") was first codified. The controversy stems from its history, its conceptualization and its nuanced interpretation by appellate courts.

In addition to outlining Québec class action history, our partner looks at the many jurisprudential analyses of paragraph 575(2) C.C.P., specifically those of the Supreme Court of Canada in Infineon Technologies AG v. Option consommateurs, L’Oratoire Saint‑Joseph du Mont‑Royal v. J.J. and Desjardins Cabinet de services financiers inc. v. Asselin. He then concludes by commenting on the various solutions suggested by Justice Bich in Charles v. Boiron Canada Inc.

[1] Shaun E. FINN, "The troubled history and uncertain future of the 'arguable case' test," in Repères, August 2022, La référence, EYB2022REP3502