March 22, 2018
Dutil, Savard, Rancourt
Appeals from a judgment of the Superior Court allowing in part an application for authorization to institute a class action. Main appeal allowed in part; incidental appeal dismissed.
The trial judge authorized the appellant’s class action solely in respect to prohibited practices (ss. 229 and 220 of the Consumer Protection Act), except for the representations made at the time of sale. Both parties are appealing.
The appellant raises a number of severable causes of action. The judge dismissed some of them, rendering final judgment in their respect. The judge’s conclusions on these causes of action must therefore be treated as judgments denying authorization, within the meaning of art. 578 of the Code of Civil Procedure. In that case, the appeal is as of right. The same logic must also apply to the incidental appeal. An incidental appeal from the conclusions in the trial judgment in favour of the appellant does not lie as of right; in the circumstances, the respondent had to present a motion for leave to appeal the judgment authorizing the class action.
When the court considers the first hypothesis set out in s. 8 of the Consumer Protection Act in its analysis of the objective lesion, it should evaluate only the object of the contract to determine whether there is disproportion between the obligations of the parties and, if so, whether this disproportion is so great as to amount to exploitation. It is only when the court must consider the second hypothesis put forward in this provision to determine whether “the obligation of the consumer is excessive, harsh or unconscionable” that it must go beyond the object of the contract and consider the condition of the parties, the circumstances in which the contract was entered into and the benefits arising from the contract for the consumer. In this case, the judge erred in law in his consideration of the first hypothesis in s. 8 by taking into account the cause of the contract or its effect on certain consumers, namely, the [translation] “peace of mind” obtained by purchasing the Product Service Plan (”PSP”). The class action should therefore be authorized for the cause of action based on the objective exploitation of the consumer.
Moreover, the judge should have authorized the class action based on the violation of s. 35 of the Consumer Protection Act, while limiting the issue in that case to whether, during the manufacturer’s warranty period, the respondent discharged all its warranty obligations towards consumers who purchased a good and an additional warranty.
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