Supreme Court Reaffirms Low Bar For Authorizing Class Actions In Québec

Published date11 November 2020
Subject MatterFinance and Banking, Litigation, Mediation & Arbitration, Financial Services, Class Actions, Trials & Appeals & Compensation
Law FirmBennett Jones LLP
AuthorMs Cheryl Woodin, Ranjan K. Agarwal, Justin R. Lambert and Gannon Beaulne

On October 30, 2020, a six-judge majority of the Supreme Court of Canada confirmed, in Asselin v Desjardins Cabinet de services financiers inc, 2020 SCC 30, that a class action concerning allegedly misleading investment products against Québec-based financial services co-operative Caisse Desjardins can proceed, despite initial judicial skepticism about the allegations and logic supporting the claim.

The Québec judge who first opined on the issue declined to certify (or "authorize" under Québec law) the claim as a class action, mainly because the plaintiff had not shown a "colour of right" (an authorization requirement). The judge cited concerns relating to bald or speculative allegations, the lack of supporting documentation, and whether the claims are suitable for adjudication in a class action format.

But the Court of Appeal of Québec and, now, the Supreme Court of Canada have sent the case forward as a class action. Both levels of court reaffirmed the "flexible", "liberal", and "generous" approach to authorization set down in previous Supreme Court of Canada decisions applying Québec class actions law, including Infineon Technologies AG v Option consommateurs, 2013 SCC 59 and Theratechnologies inc v 121851 Canada inc, 2015 SCC 18.

The majority's decision suggests that, so long as claims are not frivolous or clearly wrong in law, then speculative, unsupported, or incomplete allegations or legal theories might not be disqualifying under Québec's authorization test. This result tracks prior decisions, but it brings Québec further out of sync with the prevailing approach to certification elsewhere in Canada (especially after recent amendments to Ontario's class proceedings statute introduced a stricter certification test'see our post on those changes: Major Changes to Ontario's Class Proceedings Act Come into Force). This decision also leaves unanswered important questions about how far a judge may go to "read between the lines" when a claim, as articulated, is flawed.

Background and Procedural History

Ronald Asselin invested in principal-protected term deposit products named "Perspectives Plus Term Savings" and "Alternative Term Savings", both non-cashable until maturity, offered by the financial services co-operative Caisse Desjardins.

After the 2008 financial crisis, Caisse Desjardins informed Mr. Asselin that his principal, though still protected, would yield no return, and would remain non-cashable until maturity. Mr. Asselin sought authorization to...

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