Morissette, Lavallée, Weitzman

Appeal from a judgment of the Superior Court granting in part an application for authorization to institute a class action. Application for leave to introduce indispensable fresh evidence. Dismissed.

The respondents believe that the use of cellphones designed, manufactured, and distributed by the appellants cause various serious health risks and that the appellants failed to properly disclose those risks in a timely fashion. They therefore sought authorization to institute a class action to obtain compensatory and punitive damages and the restitution or specific performance of certain prestations.

The trial judge significantly circumscribed the scope of the class action that he felt he could authorize in the circumstances. He therefore allowed only the claims for punitive damages resulting from the non-disclosure of the health risks or dangers associated with the use of the cellphones marketed by the appellants and set aside the other claims, which he considered untenable and frivolous. The appellants argue that authorization should have been refused, whereas the respondents question the narrowing of the scope of the class action. The respondents also seek to adduce fresh evidence.

The fresh evidence

Applications to adduce fresh evidence fall under article 380 of the Code of Civil Procedure (CQLR, c. C-25.01) (CCP). It is not sufficient that the evidence be new, it must also be “indispensable”; it must justify in whole or in part the Court of Appeal’s reversal of the judgment under appeal, meaning the end result of the trial itself or the resolution of an issue of sufficient importance to affect the conclusions of the judgment.

In this case, the respondents are using their 3 applications to seek to add to the record 14 pieces of evidence which, without being in the least conclusive, would successively consolidate some of the allegations in the application contested in the principal appeals. None of this evidence repairs the fatal flaw afflicting the respondents’ action, that is, the lack of an allegation of prejudice. In addition, some of this evidence already existed at the time of the hearing in first instance. Moreover, the evidence at issue cannot be characterized as indispensable because there is nothing in the information offered as new evidence to suggest that the documentation at issue could have influenced the decision of the court of first instance.

Principal appeal

Insofar as what the judge authorized to be contested on the merits appears to considerably circumscribe what the respondents sought, and insofar as the conditions of article 575 CCP were met, the proposed analogy with a commission of inquiry cannot stand. Moreover, the judge had enough probative evidence to find that the respondents’ submissions about the potential toxicity of the use of cellphones were arguable or serious at that stage. Last, he noted several times that the proceedings made clear that the respondents were claiming punitive damages, although they failed to reiterate this claim in the latest version of their proceeding.

Incidental appeal

The respondents’ grievances cannot be accepted. A general comment is in order. Although it may appear unusual for a judge ruling on an application for authorization to dissect its allegations so exhaustively, it was necessary in this case due to the absence of an allegation of prejudice. Their procedure was mainly based on mere conjecture and hypotheses which, while not devoid of plausibility, remained unproven insofar as they could have found more relevant evidence to support their allegations about users' health. This oversight by the respondents weighs heavily.

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