Supreme Court Clarifies The Commonality Requirement Under Art. 1003 (a) C.C.P. And The Proportionality Principle Codified In Art. 4.2 C.C.P.

Yesterday, the Supreme Court of Canada (SCC) released its decision in Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1 (Canlii), an appeal from a Quebec Court of Appeal (QCA) judgment overruling a judgment of the Quebec Superior Court (QSC) that dismissed a motion for authorization to institute a class action. The QCA and the QSC had diverged in their assessment as to whether the commonality requirement had been met.

The SCC unanimously concluded that when considering the commonality requirement, courts do not need to determine whether the proposed common questions will lead to common answers. The existence of one common question that can advance the resolution of the litigation with respect to all class members suffices. The SCC also reiterated and explained its decision in Marcotte v. Longueuil (City), [2009] 3 S.C.R. 65 with regards to the applicability of the proportionality principle in the context of a motion for authorization, indicating that proportionality must be considered when assessing each of the four criteria but emphasizing that the proportionality principle does not constitute a separate fifth criterion.

Background

This case followed Vivendi Canada Inc.'s unilateral amendment to the health insurance plan that it was sponsoring for its retirees and their surviving spouses in 2009. Mr. Dell'Aniello challenged the validity of the amendment and filed a motion for authorization to institute a class action on behalf of all the beneficiaries of the health insurance plan, including beneficiaries residing outside Quebec.

The QSC dismissed the certification motion based on the absence of commonality. The QSC judge was of the opinion that too many factors specific to each member had to be considered for one or more of the questions to be decided collectively. More specifically, the fact that the judge on the merits would have to conduct individual analyses regarding whether the right to insurance benefits during retirement had vested was deemed problematic by the QSC judge. Such analysis required the members to be divided into five subgroups, as different group members had different rights. The judge also noted the lack of homogeneity of the proposed group's members, as they were located in six different provinces. He found that this "range of individual recourses" prevented the requirement of art. 1003(a) C.C.P. from being met.

The QCA overruled the dismissal and found that there was at least one question common to the claims of all...