By : Jessica Fruchtermann & Katerina Kostopoulos
In theory, the authorization stage represents a crucial part of any class action proceeding. Pursuant to Article 574 of Quebec’s Code of Civil Procedure [hereinafter “C.C.P.”], a person is required to obtain court approval before instituting a class action. Essentially, the judge must determine whether the four cumulative criteria outlined at Article 575 C.C.P. are met before authorizing a class action and appointing a class member as the representative plaintiff.
Generally, these criteria are interpreted liberally. For instance, the facts alleged in the application for authorization must “appear to justify the conclusions sought”. The evidentiary standard, at this stage, only requires the applicant to establish a prima facie right. This low standard stems from the access to justice policy considerations upon which Quebec’s class action regime is founded. In Sibiga v. Fido Solutions inc., the Court of Appeal confirms that authorization remains the rule rather than the exception. The authorization procedure also bolsters judicial economy because it ensures that finite judicial resources are only allocated to the adjudication of tenable claims. The authorization stage ensures “that parties are not being subjected unnecessarily to litigation”. Defendants, therefore, do not have to incur exorbitant legal fees to defend themselves against untenable claims. In other words, the court acts as a gatekeeper. It filters out frivolous motions.
The utility of the authorization stage has been debated by class action practitioners as well as Quebec courts. An analysis of the jurisprudence reveals that in reality, the authorization stage is an inadequate gatekeeper and requires a significant amount of judicial resources.
Firstly, it can be argued that the authorization stage imposes a standard so low that the court seldom acts as a true gatekeeper. This procedure has become a completely permeable, rather than semi-permeable, barrier to a judgment on the merits. Given that the court authorizes most claims anyway, has the authorization stage become a mere formality?
Secondly, it can be argued that the authorization stage does not conserve judicial resources. For instance, in Gilles Beauchamp v. Procureure Générale du Québec, the authorization decision is 42 pages long. Both the parties and the judge spent a significant amount of time debating whether the event that occurred on Autoroutes 13 and 520 can be considered as an “accident” as it is defined in the Automobile Insurance Act. This debate would determine whether victims would be precluded from indemnification via the class action device and would thus limit their recourse to the Société de l’Assurance Automobile du Québec. The Honorable Donald Bisson essentially analyzed the merits of the argument over several pages yet also indicated that the argument would be examined in more detail at trial. The authorization stage appears to have increased delays, and subsequently, costs for the parties. As such, one could question whether we are really conserving judicial resources if the judge examines the same issue at the authorization stage as well as at the hearing on the merits.
Given these concerns, perhaps the Fonds d’aide aux recours collectifs [hereinafter “the Fund”] should assume the gatekeeping role on its own. Like the authorization judge, the Fund acts as a preliminary screener of class actions. The Fund “assesses the viability of the proposed action and considers the probable existence of the right alleged.” The Fund does not supplant the authorization judge’s functions, rather acts as a mechanism to decrease the considerable amount of time invested at the authorization stage.
Essentially the Fund’s duties would be twofold; it would firstly determine whether the authorization criteria at article 575 C.C.P. have been satisfied. If these criteria are met, the Fund would subsequently determine whether the case at hand should be granted financial assistance. Given that the Fund already assumes a gatekeeping function, one can question the necessity of a formal hearing on authorization.
In Charles v. Boiron Canada Inc., the Honorable Marie-France Bich depicted the authorization stage as an inefficient gatekeeper. Perhaps the legislator should reorganize the class action procedure and assign more importance to the Fund as a screener of class action cases. Looking back on 40 years of class actions in Quebec, it is safe to say that we can take pride in our system. However, we must not be reluctant to make changes when they are necessary and ensure that the class action device evolves in a way that is consistent with its objectives.
 Code of civil procedure, RLRQ, c. 25.01, art. 574.
 Id., art. 575.
 Id., art. 575(2).
 Marcotte v. Longueuil, 2009 CSC 43, par. 23 ; Infineon Technologies AG v. Option consommateurs, 2013 CSC 59, par. 61 ; Lambert (Gestion Peggy) v. Écolait ltée, 2016 QCCA 659, par. 42.
 2016 QCCA 1229, par. 51.
 Infineon Technologies AG v. Option consommateurs, préc., note 4, par. 61.
 Gilles D. Beauchamp v. Procureure Générale du Québec, C.S. Montréal, no 500-06-000853-172, 14 november 2017.
 CQLR, c A-25, (hereinafter “the Act”), art. 1.
 Catherine PICHÉ, “Public Financeers as Overseers of Class Proceedings” (2016) 12:3 NYLJ 776, 782.
 Id., p. 800.
 Id., p. 803.
 2016 QCCA 1716, par. 73.
This content has been updated on January 12, 2018 at 11:06 am.