Pelletier, Vauclair, Lavallée
Appeal from a judgment of the Superior Court dismissing an application for authorization to institute a class action. Application to add an alternative conclusion. Dismissed.
The appellants appeal from a judgment of the Superior Court dismissing their application alleging that the authorization judge made a palpable error in his assessment of the criteria required for an authorization to institute a class action. They seek authorization to represent all persons, and the successions of deceased persons, who were the victims of psychological, physical, or sexual abuse, or who were subjected to persecution or human experimentation in one of the institutions operated, managed, or run by the respondent congregations in the province of Quebec between 1935 and 1975, inclusively. The identification of the members of three sub-classes referred to the eligibility criteria for the National Reconciliation Program for Duplessis Orphans.
The judge did not err in finding that the application did not meet most of the authorization criteria, and accordingly, that it had to fail.
He was right to note that there was indeed confusion regarding the class. That confusion arose from the fact that the first situation, unlawful institutionalization, did not necessarily lead to the second, physical and sexual abuse, such that the persons concerned by these two situations could be significantly different.
The dilution of the common issues was clear, and the judge was right to find that it was impossible to extricate one or more identical, similar, or related issues of law or fact applicable to all the proposed class members. The appellants also failed to show that the judge committed an error in noting that the factual allegations in the application did not support an inference of common practice among the various respondent religious congregations.
In a case like this one, where the judge is of the view that the definition of the class contains weaknesses that are not minor, but rather affect its very essence, he cannot be faulted for failing to put himself in the appellants’ place to redefine the class and the common issues. The redefining exercise would have been more akin to creating the class than reshaping it. Therefore, the authorization judge did not err in refusing – with reasons in support thereof – to redefine the proposed class.
Text of the decision: http://citoyens.soquij.qc.ca