A Low Threshold for Advancing Class Actions is Reaffirmed in Desjardins Financial Services Firm Inc v Asselin
In Desjardins Financial Services Firm Inc v Asselin, 2020 SCC 30 [“Desjardins”], the Supreme Court of Canada (“SCC”) engaged in a debate about how to properly assess the law of class actions in Quebec. While the words “respectfully disagree” were used by the majority and the dissent, the decision exhibits strong differences of opinion as to the role of the Court in interceding in class actions from the province. Quebec’s Code of Civil Procedure, CQLR, c. C-25 [“former CCP”]—specifically art. 1003(a) and (b) (now art. 575(1) and (2) of the new Code of Civil Procedure, CQLR, c. C-25.01 [“new CCP”])—is decidedly more lax with respect to authorizing class actions compared to laws in other provinces. The exact degree of laxness was at issue in this case, with the SCC ultimately deciding 6–3 in favour of the respondents, represented by Ronald Asselin, against the appellants, Desjardins Financial Services and Desjardins Global Asset Management. This case reinforces Quebec’s intention to ensure easy access to justice through the vehicle of class actions. Moreover, it should, in addition to Infineon Technologies AG v Option consommateurs, 2013 SCC 59 [“Infineon”], Vivendi Canada Inc v Dell’Aniello, 2014 SCC 1 [“Vivendi”], and L’Oratoire Saint-Joseph du Mont Royal v JJ, 2019 SCC 35 [“Oratoire”], settle the law on the application of the CCP and place any concerns about overburdening the courts squarely at the province’s feet.
Asselin alleged that he was advised by a Desjardins financial planner and mutual fund representative to purchase Perspectives Plus Term Savings (“PP”) and Alternative Term Savings (“ALT”) investments in 2005 (Desjardins, para 167). These investments were appealing because their capital was guaranteed at maturity and there was a potential for a return at a variable rate. The investments were purchased through clients’ caisse populaire. After gaining returns ranging from 1.7 to 9 percent, in March 2009, Asselin received a letter that his investment would yield no return (Desjardins, para 170). When it was confirmed that they did not yield returns, a class action involving all those with PP and ALT investments as of October 1st, 2008 was initiated in September 2011 (Desjardins, paras 171-172).
Asselin alleged that Desjardins directly and indirectly breached their contract by failing to perform their duty to inform him and the other class members of the riskiness of the investments (Civil Code of Québec, arts. 6, 7, and 1375). The direct contractual breach resulted from Desjardins’ failure to properly instruct their employees about the risks associated with the PP and ALT investments. The indirect contractual breach followed from the direct breach. Since employees were not properly instructed, they were unable to properly inform their clients, the class members. The SCC needed to determine if this was sufficient reason to authorize a class action against Desjardins.
As per art. 1003(a) and (b) of the former CCP, a class action must raise identical, similar, or related questions of law or fact across the members of the class (common question(s)) and must have sufficient allegations to proceed by class action (colour by right). Moreover, in Infineon, Vivendi, Oratoire, the SCC found that a liberal interpretation of a class action motion best complements the intentions of the legislature to provide easier access to justice.
The case took some time to get to trial. When it eventually did, the Québec Superior Court (“QCSC”) declined to authorize the class action because it did not meet the requirements set out in art. 1003(a) and (b). Justice Claude Dallaire did not find a contract between Desjardins and Asselin. Rather, the only contractual relationship she found was that between Asselin and his caisse populaire, where Asselin would have received the deposits from his investment. Since there was no contract between Asselin and Desjardins, Asselin would not be able to establish fault on the part of Desjardins for the lack of return on his investments. Therefore, Asselin did not meet the requirements of art. 1003(b).
In addition, Justice Dallaire said that there were no common questions. Instead, she found that there were a number of mutual fund representatives and clients with no systematic issue of note to connect them as a class. For this reason, Asselin was unable to meet the requirements of art. 1003(a).
Generally, authorization is within the discretion of the motion judge. However, on appeal, the Québec Court of Appeal (“QCCA”) certified the class, citing errors by Justice Dallaire. The most notable was the fact that she did not recognize the contract between Desjardins and Asselin. The QCCA acknowledged that the motion was difficult to decipher; that said, a strict interpretation of the motion would not conform to the SCC’s liberal approach to class actions, as expressed in Infineon and Vivendi. While the QCCA conceded that the courts should not accept a motion that is vague, general, and imprecise, they argued that it is important to “read between the lines” to find the motion’s “true meaning” (Desjardins, para 190).
With this in mind, the QCCA found that Desjardins had a direct and indirect contractual relationship with Asselin that was breached by failing to adhere to the duty to inform. Most importantly, Asselin met the requirements articulated in art. 1003(a) and (b).
A Low Threshold is Affirmed Once Again
Writing for the SCC majority, Justice Kasirer affirmed the QCCA’s decision to reverse the QCSC’s dismissal of the class action. He agreed that Justice Dallaire erred in failing to recognize the contract between Desjardins and Asselin and, as a result, erred in not finding that Asselin met the requirements of art. 1003(a) and (b). He agreed with the QCCA’s assessment that there was indeed a direct and indirect contract with Asselin and the other members of the class. It is in respect of this contract, not the contract with their caisse populaire, that they suffered a duty to inform breach. In fact, Asselin never intended to call into question the contractual agreement with the caisse populaire. Kaisrer J. also agreed with the call to “read between the lines” to properly assess the nature of the motion.
Thus, Kasirer J. found that Desjardins breached their duty to inform by failing to properly train their mutual fund advisors and that the breach was of a general and systematic nature. For this reason, the motion for the class action met the art. 1003(a) (now art. 575(1)) requirement that there be a common question. He acknowledged that this is a low bar, as there may be outstanding questions of a more individualized nature, and that it is not clear if the common question prevails over these. While these are concerns that may be relevant in other jurisdictions, they are not in Québec. The CCP only requires that a common question exist; in this case, it did.
With respect to art. 1003(b)’s requirement that the allegation be sufficiently precise, the SCC agreed with the QCCA’s decision to overturn the QCSC’s finding. Kasirer J. found that once the contract between Desjardins and Asselin is recognized, the sufficiency of the allegation is plain to see. Desjardins argued that the allegations are too imprecise and vague to warrant a class action, but Kasirer J. disagreed. He found that the motion was sufficiently precise to satisfy the CCP and was supported by “some evidence”, as required by Infineon and Oratoire (Desjardins, para 40). All Asselin needed to show was an arguable case. By showing that Desjardins breached their duty to inform by not properly instructing their employees, who in turn did not properly inform the clients, and that he and others suffered financial loss as a result of this breach, Asselin showed an arguable case. For this reason, he met the requirements of art. 1003(b) of the former CCP (now art. 575(2) of the new CCP).
Two Québec Justices Tussle in the Decision
The dissent, written by Justice Côté, disagreed with the majority’s application of art. 1003(a) and (b). For this reason, she would have partly allowed Desjardin’s appeal and reinstated the judgment of the QCSC. Côté J. stated that while she recognizes the low thresholds in art. 1003(a) and (b), and does not question the liberal interpretation affirmed in Infineon, Oratoire, and Vivendi, she does question whether the liberal interpretation allows the court to “find” a common question to satisfy art. 1003(a) (Desjardins, para 199). She took particular issue with the QCCA’s direction to “read between the lines” (Desjardins, para 234). She argued that a judge authorizing a class action must decide based on the materials in front of them, not assume what a party meant to say. To this end, she states that the QCCA took “reading between the lines” too far by finding a common question unsupported by the evidence (Desjardins, para 235). Interestingly, Kasirer J responded to Côté J.’s assessment of the QCCA’s decision in one of four preliminary remarks. In one of the more adversarial exchanges, Kasirer J. seemed to take exception with Côté J.’s focus on the term “reading between the lines,” accusing her and Desjardins of misconstruing the figure of speech (Desjardins, para 20). He finds it wholly appropriate, and within the parameters of the law, to decipher the meaning of a motion when need be. In his view, that is what the QCCA did in their analysis.
What, Really, is Access to Justice?
At the heart of the opinions is the question of what access to justice ought to look like with respect to class actions. Is it easy access to the courts or more rigorous evaluations of the motions, so as to avoid overloading them? The SCC in this case, as well as in Infineon, Vivendi, Oratoire, have decided that the CCP’s low threshold demands a more flexible reading of the applicable motion. Kasirer J. stated that a motion should not fail to proceed because it is not perfectly articulated. This threshold is consistent with Québec’s legislative intent, as expressed in the CCP. This is not to say that frivolous cases should have access to the courts, but rather that claims that may require a closer look should not be denied for that reason alone.
Côté J. believes instead that the goals of access to justice require that the authorization process not be reduced to the rubber-stamping of motions. She finds that the class action as a vehicle for access to justice is threatened when the courts are overloaded because the merits of class actions are not being properly assessed. This seems to unduly constrict the meaning of access to justice. The intent of art. 1003 of the CCP is for plaintiffs to have easier access to remedies. This does not reduce the authorization process to simply rubber-stamping motions. Rather, this means being flexible in ascertaining the meaning of a motion according to the now well-established principles from Infineon, Vivendi, and Oratoire, and not dismissing a claim simply because it is not perfectly articulated. Québec’s choice not to make any changes to the new CCP [art. 575(1) and (2) are identical to art. 1003(a) and (b) of the former CCP] reflects its commitment to this understanding of access to justice. Thus, it is incumbent upon the province to provide adequate resources to the courts so as to ensure that the concerns raised by Côté J. are not realized. Asking Québecers to carry the province’s burden would frustrate, rather than promote, the goals of access to justice.