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After almost nine months of deliberation, the Court of Appeal has just handed down its decision in the Agropur [1] case. The Court has dismissed the appeal from the decision of the Superior Court, which refused to authorize the class action that André Bouchard, a dairy farmer, sought to bring against a number of milk processors and the Quebec Attorney General. Bouchard alleged that the milk processors broke the law and committed a fault that caused prejudice to Quebec milk consumers by misrepresenting the fat content of milk sold at retail, in that the milk sometimes contained less fat than the percentage indicated on the container, with the discrepancy averaging 2.5%. In its reasons for judgment, the Court of Appeal saw fit to reiterate the following principles:

• The class action is merely a procedural device.
  The Court confirmed that, rather than having the judge exercise discretion only in making his final decision on authorization, Quebec legislators chose to build the leeway required for efficient operation of the screening process into each of the tests for authorization contained in Article 1003 of the Code of Civil Procedure (CCP).
• The Court confirmed that Article 4.2 CCP and the rule of proportionality apply at the authorization stage (an interesting comment that brings to mind the "preferable procedure test" that exists in the other Canadian provinces).
• The Court emphasized the potential importance of allowing evidence to be adduced at the authorization stage and observed that, in a system where the legislator has abolished the requirement for the representative plaintiff to file affidavit evidence, judges would often be well advised to grant requests to conduct discoveries.
• The Court insisted that punitive damages cannot be awarded against respondents if no compensatory damages are awarded.
• A representative plaintiff cannot represent the members of the group adequately if there is an appearance of serious conflict of interest between the representative plaintiff and the members of the group. The Court of Appeal noted that the representative plaintiff's ability to serve as a spokesperson for the members of the group is one of the essential conditions that must be satisfied in order to achieve the social aims of the class action proceeding, which the legislators envisaged as a powerful pressure tactic in the hands of individual citizens. By demanding that the representative plaintiff satisfy this condition, the courts can ensure that class actions are instituted in the interests of the proposed group and not with some secondary motive.
• The fact that the representative plaintiff did not consult other members of the proposed group raised doubts as to his ability to adequately represent the group and as to the existence of identical, similar or related questions of fact. The judge at the authorization stage was therefore unable to assess how important the percentage fat content of the milk was for the other members of the group.
• The Court could not reasonably assume that the general dissatisfaction of the members of the group had been proved.
• The question whether there is a cause of action is not the same as the question whether the plaintiff has standing to sue. The existence of a cause of action must be verified when applying the colour of right test. However, the requirement of standing to sue is a rule of substantive law that applies to class actions and that concerns the need for plaintiffs to have the capacity to validly institute a legal proceeding.
• As is the case in Ontario and in the United States, the representative plaintiff cannot be considered an adequate representative if he does not have standing to sue and a cause of action against each of the respondents named in the proceeding.
• Class action suits fall in the domain of private law and standing to sue must be assessed in that context. A person who has not suffered any loss does not have standing.
• Until a judgment authorizing a class action is handed down, the action does not exist as a class action and it is the personal action of the representative plaintiff that must satisfy the conditions of Article 1003 CCP, including the test of colour of right, since the other aspects of the proceeding remain in the realm of hypothesis.

This decision follows on the heels of two other major class action decisions, namely, George c. Le Procureur général du Québec, C.A. Montréal 500-09-014679-047, September 19, 2006, M.-F. Bich, P. Vézina and C. Trudel, JJA. and Service aux marchands détaillants limitée (Household Finance) c. Gagné, C.A. Montréal 500-09-013447-032, October 16, 2006, M. Beauregard, L. Mailhot and L. Côté, JJA. The George and Agropur cases in particular mark an important development in class action law in Quebec.

Since the 2003 reform of the Quebec Code of Civil Procedure, the arguments that could be raised in defence against motions for authorization have often been limited. These recent decisions are welcome news for respondents, who can take comfort from this more balanced analysis that also conforms more closely to the case law that has developed in the other Canadian provinces.

[1].    Bouchard c. Agropur Coopérative, C.A. Québec 200-09-005067-050, October 18, 2006, P.-A. Gendreau, L. Mailhot and F. Pelletier, JJA.

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

© Ogilvy Renault LLP 2006 - All Rights Reserved

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