Gagnon, Cotnam, Bachand

Appeal from a judgment of the Superior Court ordering the partial dismissal of an expert report submitted by the appellants in support of an application for authorization to institute a class action. Allowed.

The judge of first instance misinterpreted the applicable legal framework by concluding that certain objections raised against the report adduced by the appellants had to be ruled on preliminarily, i.e., before the hearing on the application for authorization. The judge committed a second error in law by analyzing the merits of the applications to dismiss in light of the conditions to admit expert reports under the law of evidence.

Article 241 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.), which is part of the rules that apply to the production of expert evidence before the trial on the merits of a pending case begins, and the related case law do not apply in the context of an application for authorization to institute a class action given the particularity of this stage.

The class action authorization stage proceeds even before there is an action - at least an action on the merits. It is a simple screening mechanism during which the applicant has the burden of demonstrating that the proposed legal syllogism is tenable. The applicant is not required to prove that the claim has a sufficient basis in fact, and the court must analyze whether the legal syllogism proposed is tenable by assuming that the facts alleged in the application are true. If the applicant chooses to attach certain exhibits to the application, the court must be careful not to rule on their probative value.

Thus, the applicant is not limited to submitting, in support of an application for authorization to institute a class action, exhibits that would be admissible in evidence at the trial on the merits. It is for the authorization judge to assess the usefulness of these exhibits when analyzing the criteria set out in article 575 C.C.P.

As a general rule, objections raised against an exhibit submitted in support of an application for authorization to institute a class action should not be debated or decided at the preliminary stage, that is, before the application is heard.

The Court will only very exceptionally be justified, either because it is of no use when analyzing the criteria set out in article 575 C.C.P. or because keeping it in the record would unduly obstruct the orderly conduct of the proceeding, in rejecting such an exhibit at the preliminary stage.   

Here, the evidence in question does not fall within one of these exceptional cases where the uselessness of the evidence in question, or its adverse impact on the conduct of the proceeding, is such that the court would be justified in intervening to reject it at the preliminary stage.  

Legislation interpreted: article 241 C.C.P.

Text of the decision: http://citoyens.soquij.qc.ca