Are National Classes Still Possible? Quebec Court Refuses Stay, Questions Whether Other Provinces Can Include Quebec Class Members

• Published date: 26 April 2022
• Subject Matter: Anti-trust/Competition Law, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Cartels, Monopolies, Class Actions, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Class Actions Monitor and Catherine Martin

On April 19, 2022, the Quebec Superior Court in Option Consommateurs v. Nippon Yusen Kabushiki Kaisha (NYK), 2022 QCCS 1338 refused a stay of proceedings of a Quebec class action in the context of parallel competition class actions filed across Canada. This decision highlights the importance of judicial discretion in obtaining stay requests and departs from the notion of pan-Canadian national class actions, calling into question whether they even remain possible outside limited circumstances.

Background

In the context of a Quebec class action filed against various international shipping and transportation companies ("Defendants"), Defendants filed an Application to stay the Quebec class action in favour of a parallel class action proceeding before the Supreme Court of British Columbia ("BC Court"), until final judgment on the common issues was rendered in that file. This Application to stay was contested by Option Consommateurs ("Plaintiff").

In the Quebec class action, Plaintiff alleged that Defendants colluded to unduly limit competition and unreasonably inflate the prices of vehicle carrier services by roll-on/roll-off cargo ships ("RoRo"), and that Defendants participated in a cartel to fix, maintain, increase and artificially control the prices of vehicle carrier services by RoRo. The claim is based on the Competition Act as well as extra-contractual liability pursuant to the Civil Code of Quebec ("CCQ").

The Quebec class action was filed on behalf of all persons in Quebec who purchased vehicle carrier services by RoRo or who purchased or leased in Quebec a new vehicle, new agricultural machinery or new construction equipment transported by RoRo between February 1, 1997 and December 31, 2012. This class included direct and indirect purchasers, as well as umbrella purchasers (essentially, persons who purchased a product that was neither manufactured nor supplied by the cartel members but who are alleged to have suffered similar impacts from the Defendants' conduct).

At the time of the Application to stay, both the Quebec and BC class actions had been authorized and were progressing on the merits, but the BC class action was only on behalf of BC residents and excluded any Quebec class members, as well as any umbrella purchasers. A parallel class action had also been filed in Ontario on behalf of a national group (excluding BC and Quebec residents), but had not gone through certification yet.

While filing their Application to stay in Quebec, Defendants...