Certifying a Ham Sandwich: The Supreme Court Further Lowers the Class Authorization Bar in Vivendi
In Vivendi Canada Inc v Dell’Aniello,  1 SCR 3 [Vivendi], the Supreme Court of Canada delineated the scope of the commonality requirement in class action authorization under Article 1003 of Quebec’s Code of Civil Procedure, RSQ, c C-25 [CPP].
The judgment clarified that: (1) the “commonality of issues” requirement under the CPP is satisfied by even one common question so long as it can advance the resolution of a “not insignificant” portion of the dispute; (2) the authorization judge should not focus on what the answer to the common questions might be so long as success for one class member would not preclude it for others; (3) the authorization judge ought not to consider the existence of multiple sub-classes as they relate to the forthcoming trial; and (4) the proportionality principle is not a basis for denying authorization of the class action if the other conditions are met. In coming to these conclusions, the Court formally extended its reasoning in its recent class action trilogy to Quebec and further lowered the already-low bar for authorizing a class.
Like all great cases, Vivendi arose from a disputed interpretation of a pension plan. Seagrams, the Family Compact-era purveyor of wine and spirits, maintained an employee benefits plan (“the Plan”) that provided health insurance for its retired employees and their dependents. The Plan had been amended numerous times over the years, and in 1985, a clause was inserted that gave the employer the unilateral right to modify or suspend the Plan and its benefits.
In 2000, Vivendi acquired Seagrams, and as the successor with respect to the plan, the company announced in 2008 that it was making a series of amendments that would adversely affect the beneficiaries grandfathered under the Plan. Once those amendments came into effect, Mr. Dell’Aniello applied to the Quebec Superior Court for authorization to institute a class action against Vivendi on behalf of all beneficiaries under the Plan.
The Superior Court Decision
The motion for authorization was dismissed by Mayer J on the basis that the questions raised by the various class members were not identical, similar, or related as required by Article 1003 of the CPP. Because each claim depended on the determination of each employee’s vested rights at the moment of retirement, Mayer J concluded that a large number of questions required individualized analyses. In fact, Mayer J estimated that because there were at least five different sub-groups within the class working in six different provinces, the judge hearing the case would have to complete over twenty-two discrete legal analyses. Accordingly, the claims of the members of the proposed group did not lend themselves to a collective resolution and were denied authorization.
The Quebec Court of Appeal
The Quebec Court of Appeal unanimously allowed the appeal and thereby authorized the proposed class action. By considering how the 2009 amendment affected the various sub-groups of retirees, the trial court was effectively ruling on the merits of the case. The Court of Appeal clarified that at the stage of authorization, the judge needs only to determine whether the proposed common question was identical, similar, or related.
A Low Threshold for Authorization: The SCC Weighs In
In unanimously upholding the Court of Appeal’s decision, the Court reiterated its holding in Infineon Technologies AG v Option Consommateurs,  3 SCR 600 [Infineon]. In Infineon, the Court explained that authorization works principally as a screening mechanism intended to filter out claims doomed to failure. The petitioner is only required to establish a prima facie case, and, accordingly, the judge is not to scrutinize the merits of the case. Moreover, the Court clarified that commonality between issues (at common law or pursuant to the Civil Code) is established so long as one aspect of the case is shared between class members such that its resolution will resolve a “not insignificant portion of the dispute” for all members.
The Court similarly found that the motion judge erred by requiring answers that were common to the claims of all members of the proposed group. The common question was whether the amendments made to the Plan in 2009 were valid or lawful. Because resolution of this issue would serve to advance the resolution of all claims, the class should have been authorized. Nevertheless, it was not necessary that the answer to all questions be identical, as various retirement dates may give rise to nuanced results. Similarly, the Court specified that judges at the authorization stage are not to concern themselves with the existence of potential sub-groups.
Finally, Vivendi clarified the impact of the proportionality principle (codified in Article 4.2 of the CPP) on class proceedings. Adopting Deschamps J’s dissenting opinion from Marcotte v Longueuil,  3 SCR 65, the Court held that proportionality is not a freestanding basis on which to deny class authorization. Treating it as such, said the Court, would potentially undermine the Quebec Legislature’s choice to omit the requirement that class proceedings be “preferable” to individual actions, which is found in most common law provinces’ rules of civil procedure.
The real contribution of this case is the infuriatingly titled “not insignificant” test. This doctrinal development goes a step beyond previous Quebec jurisprudence and confirms the pro-authorization/certification trajectory of contemporary Supreme Court class actions doctrine. Nevertheless, the ruling fails to provide guidance as to just how abstract or common the issue can be—indeed, almost any case can conceivably give rise to common issues depending on how generally the issue is formulated. Moreover, while lowering the threshold in this manner undoubtedly advances plaintiff-side access-to-justice, one has to wonder whether the Supreme Court has untenably stacked the deck in their favour and further incentivized forum shopping, particularly given the significant pressure on defendants to settle post authorization/certification.