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Supreme Court Weighs in on Sexual Assault Class Action

8 minute read

The Supreme Court of Canada confirmed that class actions are an appropriate vehicle for victims of sexual assault to seek recourse.

On June 7, 2019 the Supreme Court of Canada released its decision in L’Oratoire Saint-Joseph du Mont-Royal v JJ.1 Brown J., wrote for the majority (Abella, Moldaver, Karakatsanis and Martin JJ. concurring). This class action was on appeal from the Court of Appeal for Quebec. The representative plaintiff commenced a class action on behalf of all victims of sexual assaults that were alleged to have been committed in various institutions in Quebec since 1940 by brothers and fathers who were members of the Congregation of Holy Cross. The defendants to the class action are the Province canadienne de la Congrégation de Sainte-Croix Congregation (the “Congregation”) and Oratoire Saint-Joseph du Mont-Royal (the “Oratory”).

Procedural History

The plaintiffs sought to authorize a class action before the Quebec Superior Court. In Quebec, a party must bring a motion for authorization of a class action, similar to the certification motion brought in other provinces. The Superior Court denied authorization to the class action finding that none of the conditions for authorization were met. The test for authorization in Quebec is contained in Article 575 of the Code of Civil Procedure (the “CPC”). The authorization criteria is similar to the certification test provided for in class proceeding legislation in other provinces. Article 575 of the CPC provides:

The court authorizes the class action and appoints the class member it designates as representative plaintiff if it is of the opinion that

  1. the claims of the members of the class raise identical, similar or related issues of law or fact;
  2. the facts alleged appear to justify the conclusions sought;
  3. the composition of the class makes it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others or for consolidation of proceedings; and
  4. the class member appointed as representative plaintiff is in a position to properly represent the class members.2

The decision was appealed before the Court of Appeal for Quebec. The majority of the Court of Appeal authorized the class action against both the Congregation and the Oratory. The dissenting Court of Appeal judge agreed with authorizing the class action against the Congregation but not the Oratory. The defendants appealed the Court of Appeal’s decision to the Supreme Court of Canada.

The SCC's Decision

The issue before the Supreme Court of Canada was two fold. The first issue was whether the Court of Appeal’s intervention in the Superior Court judge’s decision was justified. The second issue was, in the event the Court of Appeal’s intervention was justified, whether it was appropriate for the Court of Appeal to authorize the class action as against both the Congregation and the Oratory.

The court answered both questions in the affirmative. The court noted that the Superior Court Judge’s reasons were brief and contained errors of fact and law that justified the Court of Appeal’s intervention. It found that it was open to the Court of Appeal to intervene and to substitute its own assessment with regard to those conditions for that of the Superior Court judge.

The majority of the Supreme Court of Canada dismissed the appeal, confirming the Court of Appeal’s decision to authorize the class action as against both the Congregation and the Oratory. The court at paragraph 5 of the decision noted:

With respect, I see nothing that would justify this Court in reversing the Court of Appeal’s decision to authorize the institution of a class action against both the Congregation and the Oratory. The connection between the Congregation and the Oratory is so close — J.J.’s allegations and the exhibits filed in support of the application against both these entities are in fact largely identical — that, respectfully, the result proposed by the dissenting Court of Appeal judge is not really convincing. Similarly, the Superior Court judge’s assertion that the application is [translation] “practically silent regarding involvement on the Oratory’s part” is, again with respect, incorrect, and clearly does not suffice to dispose of the proposed class action against the Oratory: Sup. Ct. reasons, 2015 QCCS 3583, at para. 137. The main allegations in the application, set out in paras. 3.33 to 3.38, are written in the plural ([translation] “the respondents”) and therefore apply to the Oratory as much as to the Congregation. The two appeals should accordingly be dismissed, with costs to J.J.3

Class Actions as a vehicle for access to justice in sexual assault cases

The court, at paragraph 8 of the decision, reiterated the use of class actions as a vehicle for access to justice in these types of cases noting:

The Court has given “a broad interpretation and application to the requirements for authorization [of the institution of a class action], and ‘the tenor of the jurisprudence clearly favours easier access to the class action as a vehicle for achieving the twin goals of deterrence and victim compensation”: Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725, at para. 43, quoting Infineon, at para. 60; see also Marcotte v. Longueuil (City), at para. 22. In other words, the class action is not an [translation] “exceptional remedy” that must be interpreted narrowly: Tremaine v. A.H. Robins Canada inc., [1990] R.D.J. 500 (Que. C.A.); see also Comité d’environnement de La Baie inc. v. Société d’électrolyse et de chimie Alcan Ltée, [1990] R.J.Q. 655 (C.A.). On the contrary, it is [translation] “an ordinary remedy whose purpose is to foster social justice”: Harmegnies v. Toyota Canada inc., 2008 QCCA 380, at para. 29; see also Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 16; Pharmascience inc. v. Option consommateurs, 2005 QCCA 437, at para. 20; Trottier v. Canadian Malartic Mine, 2018 QCCA 1075, at paras. 35‑36. There are those who consider that [translation] “the class action is highly appropriate in sexual abuse cases, given the great vulnerability of the victims”: L. Langevin and N. Des Rosiers, with M.‑P. Nadeau, L’indemnisation des victimes de violence sexuelle et conjugale (2nd ed. 2012), at p. 370; see also, on this point, Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, at para. 39; Griffith v. Winter, 2002 BCSC 1219, 23 C.P.C. (5th) 336, at para. 38, aff’d 2003 BCCA 367, 15 B.C.L.R. (4th) 390.4

This decision illustrates the important role class actions can have for victims of sexual abuse.

Another Quebec class action involving allegations of sexual assault was certified last year. On May 22, 2018, Quebec’s Superior Court certified the class action proposed in Les Courageuses c Rozon. The plaintiffs in this action are a collective of women, referred to as “Les Courageuses,” which translates to “The Courageous Ones”, who claim they were abused and or sexually harassed by the defendant, Just for Laughs founder, Gilbert Rozon. The abuse is said to have occurred between 1972 and 2016, and some of the victims were minors at the time of the abuse. The plaintiffs in this action claim for extra contractual civil liability for compensatory damages and punitive damages against the defendant.

In certifying the action, Donald Bisson, JCS observed, “In the past, the procedural vehicle for collective action has demonstrated efficacy in the sexual assault cases, since it has allowed hundreds of victims access to justice in Quebec. If the plaintiff was not authorized to bring this class action, it is highly likely that many victims would be deprived of the exercise of their rights in court.”6 The court noted that a class action allows the victims to understand they are not alone, that the assaults are not their fault and that if they have the courage to come forward to denounce the sexual abuse committed against them, they will make the stories of other victims more likely and that a class action will merit common evidence that will benefit all the victims.7

On August 15, 2018, the Quebec Court of Appeal granted the defendant leave to appeal the certification decision.8 The appeal was heard on May 16, 2019 before a three-judge panel of Quebec’s Court of Appeal. The decision is currently under reserve.

Conclusion

In light of these cases, allegations of sexual assault and harassment are not immune from class actions. In circumstances where there are multiple victims asserting common claims, class actions may be an appropriate vehicle for a large number of victims to gain access to justice.


 

[1] L’Oriatoire Saint-Joseph du Mont-Royal v J.J., 2019 SCC 35 [“L’Oriatoire”].

[2] Article 575 of the Code of Civil Procedure, CQLR, c. C-25.01.

[3] L’Oriatoire, supra note 1 at para 5.

[4] L’Oriatoire, supra note 1 at para 8.

[5] Les Courageuses c Rozon, 2018 QCCS 2089.

[6] Ibid at para 126.

[7] Ibid at para 78.

[8] Rozon v Les Courageuses, 2018 QCCA 1333.

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