The SCC Reaffirms The Court's Screening Role At The Authorization Stage For Class Actions

The Supreme Court of Canada recently upheld the Court of Appeal's decision for the authorization of a class action on sexual assault in L'Oratoire Saint-Joseph du Mont-Royal v. J.J., 2019 SCC 35.

Context

The representative plaintiff filed an application for authorization to institute a class action against the Oratoire Saint-Joseph du Mont-Royal (the Oratory) and the Province canadienne de la Congrégation de Sainte-Croix (the Congregation) on behalf of all victims of sexual assault allegedly committed by members of the Congregation. The Oratory was also designated as a defendant due to its connection with the Congregation and the claim; members of the Congregation act as directors of the Oratory and manage its affairs. The Oratory was also the location of the plaintiff's alleged sexual assault and that of four other members of the class action.

Previously, the Superior Court of Québec has denied the institution of the class action, stating that the applicant did not meet any of the four conditions in article 575 of the Code of Civil Procedure (C.C.P.). The decision was reversed by the Court of Appeal, which found numerous errors, both of fact and of law, and found that all conditions of art. 575 were met. The Supreme Court upheld the decision and furthered the analysis of article 2926.1 of the Civil Code of Québec (C.C.Q).

The Supreme Court's Decision

In its decision, the Supreme Court affirmed Vivendi Canada Inc. v. Dell'Aniello, [2014] 1 S.C.R. 3 and Infineon Technologies AG v. Option consommateurs, [2013] 3 S.C.R. 600 and emphasized on the court's role at the authorization stage. Pursuant to art. 571, the court plays a screening role and must only view the application as a procedural means.

In assessing the condition of commonality of issues, the Court reaffirmed the application of art. 575(1) in Vivendi. The emphasis is not on the differences between the class members, but on the "identical, similar or related issues of law or fact". The judge must simply assess whether there is at least one common question stemming from the fact of all class members. If the fact is significant enough to advance the resolution of every class member's claim, the condition is met. The Court remains flexible in its interpretation of the common interest to this regard.

In this case, the Court also maintained the class action against the Oratory on the basis that any finding of direct liability of the Oratory will advance the action of each member of the...