When Can a Class Action Be Stayed in Quebec? Wait for Poirier.
In Li v. Equifax inc., 2018 QCCS 1892, Justice Donald Bisson, J.S.C., had refused to stay the Quebec class action proceedings concerning the 2017 Equifax data breach, notwithstanding the fact that similar proceedings were ongoing in three other Canadian provinces. On September 21, 2018, Justice Claudine Roy, J.C.A., denied leave to appeal the Equifax decision (2018 QCCA 1560). Her judgment leaves certain key questions unanswered with respect to staying class actions in Quebec and we will have to wait for a full bench of the Court of Appeal to rule in Garage Poirier & Poirier Inc. c. FCA Canada Inc., 2018 QCCS 107, under appeal 2018 QCCA 490, to (perhaps) obtain an answer to those questions.
In Equifax, Justice Bisson applied the two-step test from Poirier for determining whether a stay should be granted in a class action. Accordingly, he first examined whether the criteria for international lis pendens under art. 3137 of the Civil Code of Quebec were met. Article 3137 reads as follows:
3137. On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same subject is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.
Justice Bisson found that one of the criteria was not met with respect to the Ontario proceedings, namely anteriority of the foreign proceedings, because the Quebec proceedings were filed before the proceedings in Ontario. Justice Bisson also found that the second part of the test was not met. While he concluded that the criteria under art. 3137 CCQ were met with respect to Saskatchewan, he ruled that the Court should refuse to stay the Quebec action to protect the rights and interests of Quebec residents (art. 577 CCP).
In her judgment denying leave to appeal, Justice Roy does not address the questions already pending in Poirier. In fact, she explicitly states that she will not comment on whether a judgment refusing a stay can be appealed, because that question was already deferred to a bench of the Court of Appeal in Poirier.
Justice Roy nonetheless holds that, even if such a right of appeal existed, leave should not be granted in Equifax because Justice Bisson properly exercised his discretion pursuant to art. 577 CCP.
She does not express an opinion as to whether the anteriority criteria under art. 3137 CCQ should be applied with some flexibility in the context of a class action, but mentions that the Court of Appeal might address this issue in Poirier.
Nonetheless, Justice Roy adds that a judge can always stay proceedings when all parties consent (« Un juge peut toujours, dans l’exercice de ses pouvoirs de gestion, suspendre un dossier à la demande des parties. » (para. 11)). This seemingly innocuous statement is important, as it appears to contradict the view adopted by the Superior Court in Equifax and Poirier according to which all criteria under art. 3137 CCQ must be met for the judge to grant the stay:
Il faut noter que cette discrétion n’existe que si les conditions de l’article 3137 CcQ sont respectées. Ainsi, cette discrétion ne permet pas, à l’inverse, de passer outre aux prescriptions de cet article pour accorder un sursis des procédures québécoises malgré que toutes les conditions ne soient pas réunies. (Poirier, 2018 QCCS 107, para. 23)
If the Court of Appeal does not address that question squarely in Poirier, the statement from Justice Roy, while an obiter, creates some uncertainty regarding the applicable test for staying class actions in Quebec.