By : Jessica Fruchtermann and Katerina Kostopoulos
In a judicial system characterized by the traditional adversarial model, parties maintain complete control over their case while the judge acts as a passive arbitrator, adjudicating based on the evidence presented before him/her. While Quebec’s system was historically adversarial, judges have become increasingly managerial and hands-on following the adoption of its most recent Code of Civil Procedure. Quebec’s system has undergone a shift away from the adversarial model and towards an inquisitorial one, in which judges use case management powers in order to shape the progression of a case.
This shift is particularly apparent in a class action context. Pursuant to Article 572 C.C.P., a “special case management” judge oversees the case and determines whether or not to authorize the action. The judge is at liberty to approve the class definition, appoint the representative plaintiff and identify the questions to be dealt with collectively. These case management powers allow the judge to expedite a proceeding that would otherwise involve long delays due to its complexity.
Importantly, throughout the proceeding, the judge must actively protect class members’ interests. A class action, by definition, implies representation without a mandate. The judge must remain conscious of this particularity, especially in a settlement context. Pursuant to Article 590 C.C.P., a settlement is only valid with a judge’s stamp of approval. This provision safeguards against collusion between counsels to the detriment of absent class members. The judge ensures that the proposed settlement is fair and reflects class members’ interests prior to approving it.
These guidelines, however, do little to ensure that the settlement is in fact equitable. Furthermore, at the settlement approval stage, a judge often hears a “one-sided presentation about how wonderful the settlement is” because the relationship between the representative plaintiff and the defendant is no longer an adversarial one. Given that both parties agree on the proposed settlement, it is difficult for the judge to second-guess or criticize it. Due to these issues, Justice Belobaba, in Leslie v. Agnico-Eagle Mines, suggests that judicial approval of class action settlements requires more rigour. Judges, in other words, must be more thorough and critically analyze the settlement presented by defense and class counsel.
One potential solution would be to appoint an independent panel of attorneys to scrutinize each proposed settlement and guide the judge in his/her decision to approve or reject it. Although this solution seems to allow for a comprehensive analysis of an agreement, it has its shortcomings. Independent counsel includes a panel of former attorneys, who have worked as class counsel or as defendant’s counsel in the past. Conceptions of a fair, reasonable settlement may differ among members of the panel based on previous experiences. Additionally, this independent panel of attorneys would increase costs associated with the class action. Is it fair to impose the costs on the representative plaintiff and class members, the defendant or both parties? Can government institutions such as the Fonds d’aide aux actions collectives reimburse these costs? We must ask these questions in order to ensure that the class action is an effective vehicle for achieving compensation and more generally, access to justice.
 Catherine PICHÉ, « Judging Fairness in Class Action Settlements », (2010) 28 Windsor Y.B. Access Just. 111, 121
 C.C.P., art. 572 par. 1: “As soon as an application for authorization to institute a class action is filed, the chief justice, unless the chief justice decides otherwise, assigns a judge as special case management judge to manage the proceeding and hear all procedural matters relating to the class action. The chief justice may assign a judge despite there being grounds for the judge’s recusation, provided the chief justice considers the situation, in the context of the case, does not undermine the impartiality of the judiciary.”
 C.C.P., art. 576.
 CQLR, c C-25.Q. 1991, art. 1045
 CCP, art. 571.
Union des consommateurs v Pfizer Canada inc., 2012 QCCS 16 at paras 26-27 [Union] ; Piché, supra note 1 at 131.
 C.C.P., art. 590.
Union, supra note 6 at para 27 ; Piché, supra note 1 at 130.
Leslie c. Agnco-Eagle Mines, 2016 CanLII 523 (ONSC).
This content has been updated on April 12, 2018 at 10:33 am.