Changes to the Québec Code of Civil Procedure came into effect on January 1, 2016.1 Amongst these changes is the introduction of Article 577 which addresses what the court should consider when there are extraterritorial multi-jurisdictional class proceedings that overlap with a Québec class action. The article provides:
The court cannot refuse to authorize a class action on the sole grounds that the class members are part of a multi-jurisdictional class action already under way outside Québec.
If asked to decline jurisdiction, to stay an application for authorization to institute a class action or to stay a class action, the court is required to have regard for the protection of the rights and interests of Québec residents.
If a multi-jurisdictional class action has been instituted outside Québec, the court, in order to protect the rights and interests of class members resident in Québec, may disallow the discontinuance of an application for authorization, or authorize another plaintiff or representative plaintiff to institute a class action involving the same subject matter and the same class if it is convinced that the class members' interests would thus be better served.
In Boehmer c. Bard Canada inc., 2016 QCCS 4702, the court considered a motion to stay a Québec class proceeding in favour of a national class action commenced in Ontario and articulated for the first time what protecting “the rights and interests of Québec residents” means.
In the spring of 2016, class actions regarding an inferior vena cava (“IVC”) filter were commenced in Québec (on March 31), in Ontario (on April 22) and in BC (on May 13). The Ontario action proposed a national class while the Québec action was limited to residents of Québec. Justice Perell was appointed to case manage the Ontario action and an application was subsequently brought in Québec, by all of the parties, to stay the Québec action for 120 days with the intention that any temporary stay would seek to be extended or made permanent.2
Findings of the court
The court was satisfied that there was lis pendens between the Ontario and Québec class actions – i.e. the actions involved the same parties, involved the same facts (causes of action/wrongs) and sought the same relief (certification for individuals who allegedly suffered harm as a result of the implantation of the IVC filter).3 The court was also satisfied that a final decision in the Ontario class action would be capable or recognition and enforcement in Québec.4
The court then considered whether staying the Québec class action in favour of the national Ontario class action was consistent with the court's duty to protect the rights and interests of Québec residents. The court found it was as:5
- the rights and interests of the proposed class members in the Québec action would be treated imilarly if adjudicated in Ontario;6
- Québec residents would benefit from only one action proceeding in one jurisdiction saving on costs and time for their counsel;7
- Québec residents would not suffer any prejudice as the Québec action was only stayed pending a final determination in the Ontario action and was not being dismissed. This meant that the Québec court still maintained jurisdiction to further consider and protect the rights and interests of Québec residents. For instance, should the Ontario action not be certified there could be an application to lift the stay of the Québec action and if granted, the Québec action would proceed diligently.8
- Similarly, if there were a motion to discontinue the Québec action and the court was not satisfied that the rights and interests of Québec residents would be protected, the court maintained jurisdiction and authority to refuse the discontinuance.9
In making these findings, the court relied on undertakings given by the parties that they would provide periodic updates on developments in the Ontario and BC actions and that they would diligently advise and provide a copy of any judgment or order issued in the Ontario action. Ontario class counsel had previously been required by the Ontario court to report and provide copies of all directions, orders and judgments to the Quebec court.10
As a result, the temporary stay was granted consistent with the principles of proportionality and judicial economy.11
The court's decision to grant a temporary stay suggests that protecting Québec residents' rights and interests means ensuring Québec residents will have access to justice in a form that is consistent with what they could receive and expect in Québec. It is important to remember that this motion was essentially brought on consent. How the court will rule should such a motion be contested, for instance on the grounds of accessibility due to language, remains a matter to be determined another day. In the interim, this decision is in keeping with best practices for co-ordinating multi-jurisdictional class actions and a (hopefully) developing trend across the courts of this country streamlining adjudication of parallel multi-jurisdictional class proceedings.
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1Code of Civil Procedure, CQLR c C-25.01
2Boehmer c. Bard Canada inc., 2016 QCCS 4702, [Boehmer] at paras 1-15
3Boehmer at paras 16-24
4Boehmer at paras 25-30
5Boehmer at paras 31-32
6Boehmer at para 33
7Boehmer at para 34
8Boehmer at para 35
9Boehmer at para 36
10Boehmer at paras 37-38. See also para 14 where it was also noted at the outset of these reasons that there had been communications between the Québec and Ontario courts and that simple arrangements had been made for the two courts to communicate and cooperate whenever advisable.
11Boehmer at paras 39-42