Written By Pascale Dionne-Bourassa and Peter Douglas
As 2023 marks the opening of the Bennett Jones Montréal office, it is worthwhile to look at an interesting development in class action procedures in Québec.
Parallel class actions filed in multiple provincial jurisdictions are a common feature in Canadian class action litigation that often frustrate one of the very purposes of class proceedings—to support judicial economy.
Courts across Canada aspire to find more efficient ways to navigate multijurisdictional class actions. National coordination and communication have been encouraged to reduce the strain that overlapping or duplicative class actions have on already scarce judicial resources.
As a result, we have seen a rise in the creation of national consortiums of plaintiff’s counsel that organize various parallel class actions into common national litigation. The formation of national consortiums can improve the efficiency by which multijurisdictional class actions are resolved through the request for stays of proceedings in certain provincial jurisdictions while allowing for a national class to be represented in a single class action that moves forward.
While this spirit of cooperation and coordination has led to a number of increased efficiencies in the litigation of class proceedings, we have not yet seen this translate entirely into the settlement of national class actions. There has been an increase in the number of joint settlement approval hearings before multiple provincial courts, but it still remains common practice for the approval of a national class action settlement to be sought by both a provincial court in common law Canada and the Superior Court of Québec.
However, recent case law in Québec shows us a path to further efficiency in the way national class action settlements are approved and implemented.
In Bourgeois v. Electronics Arts Inc. [Bourgeois], the Superior Court of Québec authorized the discontinuation of a proposed class action in Québec on the basis that a parallel class action was settled on behalf of a national class in British Columbia. In doing so, the Superior Court of Québec has demonstrated that Québec courts are willing to show deference to the decision of another provincial court that positively affects the rights of Québec residents.
In granting the discontinuance, the Superior Court of Québec referred to the Québec Court of Appeal’s decision in École communautaire Belz v. Bernard [École communautaire Belz] which noted that such a discontinuance may be granted where: (1) the discontinuance does not harm the putative members of the proposed class and (2) it does not undermine the integrity of the justice system. Beyond this, the court is not to decide whether the discontinuance is opportune and does not have to evaluate the sufficiency of the reasons justifying it. As the Court itself wrote in the École communautaire Belz case; “the judge must play his role in light of the principle that the parties, insofar as they respect the principles, objectives and rules of procedure and established deadlines, have control of their case.”
In applying this standard and granting the discontinuance, the Superior Court of Québec held in Bourgeois that the terms of the proposed national settlement in British Columbia were not prejudicial to Québec residents as:
- the settlement provided for the resolution of class members’ claims on an equal basis;
- notice was fairly provided to Québec residents through the wide dissemination of a bilingual settlement notice that was also published in the Québec Class Actions Registry; and
- the settlement provided for a bilingual claims administrator based in Québec that residents of Québec would have access to. Further, the Superior Court noted that “granting the discontinuance would not undermine the integrity of the justice system but rather would promote the principles of both judicial economy and interprovincial comity.”
Allowing for national class settlements to be approved in a common law province without requiring the approval of a settlement in a parallel Québec class proceeding via the discontinuance option can lead to a more expedient and cost-effective settlement approval process.
In 2023 and beyond, it will be interesting to see the impact of the Superior Court of Québec’s decision in Bourgeois and whether the certification and settlement of class actions becomes a single jurisdiction process provided the procedural due process of the settlement meets with Québec Court approval.