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Basic Minimum Effort: Are There Still Arguments to Raise Against a Class Representative?

Basic Minimum Effort: Are There Still Arguments to Raise Against a Class Representative?

In the recent judgment of Justice Christian Brossard in Rabin v. HP Canada Co. (2017 QCCS 3636), the issue of what is required to meet the requirement of article 575(4) CCP was once again addressed.

This time it was in the context of a motion to examine the proposed class representative. In that case, the Plaintiff was seeking to represent the following group of people:

Sub-Group A, which comprises all persons in Canada who have purchased or own an HP OfficeJet printer imported, distributed, sold or otherwise put onto the marketplace by Defendants (the HP Printers); and

Sub-Group B, which comprises all persons in Canada who purchased third-party non-HP cartridges that were compatible with the HP Printers before September 13, 2016,

In a case that was summarized by the Court as follows:

[3] The situation, as alleged by Plaintiff, may be summarized as follows:

● Defendants are responsible for importing, marketing, distributing and selling a handful of technology products within Canada. Those include printers, printer hardware, printing supplies, printer ink cartridges, scanners, etc.;

● On or about September 13, 2016, thousands of HP Printer owners in Canada started experiencing problems and crashes with their HP Printers. They stopped recognizing and accepting third-party ink cartridges (i.e. ink cartridges that had not been manufactured by Defendants) that were compatible with the HP Printers before that date;

● It was subsequently revealed that the problem was caused by an HP Printer’s firmware update that was programmed to affect the HP Officejet series of printers using third-party non-HP ink cartridges, by rejecting, starting on September 13, 2016, all such third-party ink cartridges, including those that had already been purchased and installed by Class Members and that had been working properly in their HP Printers;

● Defendants’ goal was to reprogram the HP Printers so that they would only thereafter accept HP-branded ink cartridges, which cost a lot more than third-party replacement ink cartridges, thus allowing Defendants to increase their profits to the detriment of the Class Members;

● Plaintiff and the Class Members were not told, at the time of purchase, that their HP Printer would at some time in the future reject the less expensive third-party replacement ink cartridges. Had they been told, they would not have purchased the HP Printer, and surely not at the price paid; and

● Nor were the Class Members informed by HP of the updates or did they consent to Defendants unilaterally pushing such updates into their HP Printer, making them no longer what they had bargained for.

The Defendants were seeking to examine the Representative Plaintiff on various issues. Of interest, though, is the reasoning that Justice Brossard used to authorize a limited examination against to test whether they were an adequate representative:

[27] As mentioned earlier, Plaintiff, who is seeking to be appointed as representative plaintiff on behalf of the Class Members, must establish that she “is in a position to properly represent the class members”.

[28] Plaintiff’s allegations, from her Application for Authorization, that relate to the foregoing criterion are found at paragraph 51:

52. (sic)  Petitioner, who is requesting to be appointed as Representative Plaintiff, is in a position to properly represent the Class Members (Article 575 (4) C.C.P.) since Petitioner;

a. is a Class Member who purchased one of Respondents’ HP Officejet printers;

b. understands the nature of the action and has the capacity and interest to fairly and adequately protect and represent the interests of the Class Members;

c. is available to dedicate the time necessary for the present action before the Courts of Quebec and to collaborate with Class Counsel in this regard;

d. is ready and available to manage and direct the present action in the interest of the Class Members and is determined to lead the present file until a final resolution of the matter, the whole for the benefit of the Class Members;

e. does not have interests that are antagonistic to those of other Class Members;

f. as given the mandate to the undersigned attorneys to obtain all relevant information to the present action and intends to keep informed of all developments;

g. has given the mandate to the undersigned attorneys to post the present matter on their firm website in order to keep the Class Members informed of the progress of these proceedings and in order to more easily be contacted or consulted by said Class Members;

h. is, with the assistance of the undersigned attorneys, ready and available to dedicate the time necessary for this action and to collaborate with other Class Members and to keep them informed;

[29] Defendants qualify those allegations as “general and boilerplate allegations regarding [Plaintiff’s] capacity and availability to act as representative plaintiff”. They further argue that Plaintiff fails to provide any detail as to what steps, if any, she has already taken to ensure the adequate representation of the Class Members.

[30] As a result, Defendants seek to examine Plaintiff with respect to the following topics:

1. Plaintiff’s investigation with regards to the existence of the group and her efforts and results with regards to the identification of Class Members; and

2. Any other facts related to Plaintiff’s ability to adequately represent the Class Members.

* *

[31] In Infineon Technologies v. Option consommateurs, the Supreme Court of Canada enunciated the factors that need to be taken into account when assessing the criterion of proper representation, namely:  interest in the suit, competence of the representative and absence of conflict with the group members. Those factors are to be interpreted liberally and the threshold is low, including when it comes to demonstrating competence.

[32] That said, in order to determine whether a petitioner has the “compétence minimalement requise”, the Court of Appeal indicated that it may be useful to know what steps or actions he or she has taken to ascertain the existence of a group of putative class members and how such steps or actions, or lack thereof, tend to demonstrate or, on the contrary, disprove the petitioner’s true interest and ability to represent the group.

[33] In this case, Plaintiff’s allegations that relate to the steps or actions she has taken are limited to the assertions found at subparagraphs 51 f and g of her Application for Authorization. It is relevant at this stage, and may be useful in assessing Plaintiff’s competence to represent the Class Members, for Defendants to verify what other steps, if any, Plaintiff has taken. If no other steps were taken, whether or not the mandates given by Plaintiff to her lawyer are nevertheless sufficient to establish her competence may be debated at the hearing on the Application for Authorization.

[34] The same can be said of Plaintiff’s assertion that she “has the capacity and interest to fairly and adequately protect and represent the interests of the Class Members”. More of an opinion or argument, what facts, if any, is she basing herself to make the assertion? What those facts are, if any, may be useful in assessing Plaintiff’s actual capacity and interest.

The Court therefore left open the possibility that a class member who had, for example, not themselves done anything to ascertain the size of the class, could still be an adequate representative depending on the actions taken by their lawyers.

That being said, the Court was mindful of the limited nature of the questions permitted:

[35] That said, there is no compelling reason to justify holding an examination out of court, ahead of the hearing on the Application for Authorization. On the contrary, the principles of proportionality, of efficiency and of proper case management speak in favour of the opposite.

And ordered a very limited examination both in writing and out of court:

ORDERS the plaintiff, Jaclyn Rabin, to answer the following question, in an affidavit to be notified to the defendants and filed in the court record no later than August 18, 2017, namely:

When did Plaintiff first consult the “Extent of limited warranty” clause from the instructions manual for her HP Printer (Exhibit P-4), in relation to the date of her purchase of the printer and in relation to the date of September 13, 2016?

AUTHORIZES the defendants to examine the plaintiff during the hearing of her application for authorization to institute a class action, for a maximum duration of 30 minutes, on the following topics:

1. the investigation made by Plaintiff with regards to the existence of the group and to the identification of putative class members; and

2. the facts upon which Plaintiff bases her assertion that she has the capacity and interest to fairly and adequately protect and represent the interests of the class members;

Will we see a day when examinations of representative plaintiffs are routinely denied? Perhaps, but not yet.

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