CANADA Law and Practice Contributed by: David Gadsden, John Pirie, Brendan O’Grady and Anton Rizor, Baker McKenzie
In Quebec, a party seeking authorisation of a class action only needs to show that an “arguable case” exists. The court will assume that the facts alleged are true. There is no requirement to file any affidavit evi- dence in Quebec, and the defendant has to apply for leave of the court to cross-examine on any affidavit. If the plaintiff prevails, the court will certify a class defi- nition that describes which persons are represented in the class proceeding. The court will also certify a list of common issues to be addressed at trial. Notice to Class Members Once a class action has been certified and all appeals have been exhausted, the class members will be noti- fied of the certification. The court has discretion to determine the form of the notice. Usually, it involves advertising in newspapers, on social media and law firm websites, or through direct notification to class members. Class members are entitled to opt out of (or, in some limited circumstances, opt in to) the proceeding dur- ing a time period set out in the notice. If persons or entities captured by the class definition fail to opt out, they will be bound by the result of the lawsuit. Discoveries Next, the parties will engage in a documentary discov- ery process where they are usually obliged to disclose all relevant documents in their power, possession or control. The parties will conduct examinations for discoveries in which each party can ask a representative of the opposing party about facts relevant to the issues in dispute. Usually, parties can only examine one witness per corporate party; however, the court has discretion to order additional examinations. Common Issues Trial Following discoveries, the parties will proceed to a trial of the certified common issues. Class actions usually settle after certification, and trials are relatively rare. Individual Issues Trial It is possible that individual issues remain to be deter- mined following a common issues trial. In that cir-
cumstance, individual trials or hearings to resolve the remaining issues for individual class members can be carried out in court or through an alternative dispute resolution mechanism. 3.3 Standing Any legal person can pursue a class proceeding. This includes individuals and corporations. The person must fall within the definition of the proposed class and cannot have conflicts of interest that collide with the proposed class members. If a class proceeding is certified, the court will appoint one or more repre- sentative plaintiffs. While class proceedings involving representative plaintiffs are far more common, certain provinces permit class proceedings pursued by defendants. For instance, Ontario’s class proceedings legislation permits any party to a proceeding against two or more defendants to bring a motion to certify the proceed- ing as a class proceeding and appoint a representa- tive defendant. The certification requirements are the same irrespective of whether a plaintiff or a defendant seeks certification. 3.4 Class Members, Size and Mechanism – Opting In or Out When certifying/authorising a class proceeding, the court will issue a class definition setting out the per- sons included in the class action. The class must contain two or more class members, but there is no upward limit on the size of the class. The court will prescribe an opt-out period during which persons captured by the class definition can choose not to be bound by the result of the trial or settlement. Certain Canadian jurisdictions have opt- in procedures for non-residents; however, those have largely been eliminated, except in New Brunswick and Newfoundland and Labrador. 3.5 Joinder Defendants in a class proceeding can cross-claim against an existing defendant or bring a third-party claim to introduce a new party into the proceeding.
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