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Supreme Court Nominee Justice Kasirer No Stranger to Class Actions

4 minute read

On July 10, 2019, Canada’s Prime Minister, Justin Trudeau, announced his nomination for the Supreme Court of Canada to fill the seat to be made vacant by the Honourable Justice Clément Gascon’s retirement on September 15, 2019. The nominee, the Honourable Nicholas Kasirer, of the Quebec Court of Appeal, is no stranger to class actions.

Notable Class Action Decisions

For the past ten years, Justice Kasirer has sat on the Quebec Court of Appeal. In this role, Justice Kasirer has ruled on many class action decisions in Quebec. I have highlighted a few below.

Justice Kasirer penned the decision in Option Consommateurs v Infineon Technologies, 2011 QCCA 2116 (affirmed by the Supreme Court of Canada, [2013] 3 SCR 600). This case was an appeal from a judgment dismissing an application to authorize a class action. Justice Kasirer allowed the appeal and the decision is frequently cited for the test to be applied in considering whether to grant leave to bring a consumer class action. As noted by Justice Kasirer in his questionnaire completed for the purpose of the nomination process, “the decision also highlights bilingual statutory interpretation and shows how in class actions, Quebec law may benefit from pan-Canadian and even US case law, without compromising its specificity.”

In another consumer class action, Sibiga v Fido Solutions Inc, 2016 QCCA 1299, Justice Kasirer was part of the three judge panel overturning a decision that denied authorization to a consumer class action involving mobile data roaming fees. Justice Kasirer, wrote for the court, granting the appeal and noting the role of class counsel, and the representative plaintiff in the context of a consumer class action. At paragraph 102 of the decision he noted, “While it is not inappropriate to be mindful of possible excesses of what some have described as “entrepreneurial lawyering” in class actions, it is best to recognize that lawyer-initiated proceedings are not just inevitable, given the costs involved, but can also represent a social good in the consumer class action setting…”

Most recently, Justice Kasirer was one of the five judges on the Quebec Court of Appeal Panel upholding the decision in favour of the plaintiffs in the Imperial Tobacco class action, Imperial Tobacco ltee v Conseil Québécois sur le tabac et la santé, 2019 QCCA 358. The plaintiffs in this class action successfully argued that the defendants, failed to inform consumers about the risks of smoking to their health. The Quebec Court of Appeal upheld the trial judge’s decision award of $15 billion.

Nomination & Appointment Process

In 2016, Canada, launched a new process for the selection of nominees to fill vacancies at Canada’s highest court. The list of nominees for the Supreme Court of Canada are to be compiled by a non-partisan advisory board. For this particular appointment arising out of a vacancy for a seat from Quebec, the committee consists of:

  • 2 members, including the Chair of the Advisory Board, nominated by the federal Minister of Justice;
  • 2 members, including at least one who is not a practicing lawyer, nominated by Quebec's Minister of Justice;
  • 1 judge from Quebec who is retired from a superior court of Quebec or from the Supreme Court of Canada, nominated by the Canadian Judicial Council;
  • 1 lawyer who is a member of the Barreau du Québec, nominated by the Barreau du Québec;
  • 1 lawyer who is a member of the Barreau du Québec, nominated by the Canadian Bar Association – Québec Division;
  • 1 legal scholar nominated by the Deans of the Quebec Law Faculties and of the Civil Law Section of the University of Ottawa's Faculty of Law.

On May 15, 2019, the Prime Minister’s office announced the members of the Advisory Board for Quebec to fill the seat to be made vacant by Justice Gascon. The selection committee was chaired by former Prime Minister, the Right Honourable Kim Campbell, and included former Supreme Court of Canada Justice the Honourable Louise LeBel, Eugénie Brouillet, Steeves Bujold, Céline Lévesque, Lili-Anna Pereša, Joseph Yvon Thériault, and Han-Ru Zhou.

On July 25, 2019, Justice Kasirer appeared to answer questions before a special committee consisting of members of the House of Commons Standing Committee on Justice and Human Rights, the Standing Senate Committee on Legal and Constitutional Affairs, and representatives from each party with seats in the House.

Justice Kasirer was officially appointed to the Supreme Court of Canada on August 7, 2019 effective September 17, 2019.

Conclusion

The addition to the Supreme Court of Canada of a Justice with significant class actions experience is quite apt considering the volume of class action cases headed to Canada’s highest court in the fall. The line up of class actions granted leave to appeal before the Supreme Court of Canada includes Uber Technologies Inc v Heller, 2019 ONCA 1, Atlantic Lottery Corporation Inc.-Société des lotteries de l’Atlantique v Babstock, 2018 NLCA 71, and 1688782 Ontario Inc v Maple Leaf Foods Inc, 2018 ONCA 407.

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Jacqueline M. Palef

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