Class Actions: Introduction of evidence, another obstacle for respondents at the authorization stage? 


August 2013

Class Action Bulletin

The recent decision of the Superior Court of Quebec in Dick v Johnson & Johnson inc.,1 rendered in the context of a motion seeking authorization/certification to institute a class action (the "Motion for Authorization") provides yet another example of the type of evidence that the Court will consider as being sufficiently appropriate for the purposes of being introduced (or not) in an authorization/certification hearing in Quebec.


In this case, the proposed class representative seeks an authorization to institute class action proceedings, alleging that the Respondents have marketed defective hip implants. In the context of opposing the Petitioner's Motion for Authorization, the Respondents sought permission from the Court to introduce evidence consisting of affidavits, scientific literature, correspondence and other related materials pertaining to the recall of the allegedly defective hip implants. The Court denied the Respondents' request to present any of the evidence at the authorization stage with the exception of the documents which provided for additional information regarding the implant recalls.

At the authorization stage, evidence may only be introduced with the Court's permission and only if the Court finds it to be appropriate at that stage of the proceedings.2 Revisiting the criteria put forward in Option aux Consommateurs v Banque Amex du Canada,3 the Court emphasized that the assessment of the usefulness or appropriateness of the proposed evidence should, inter alia, be made while taking into account the rules of proportionality that guide the reasonable conduct of the proceedings.4 In addition, the proposed evidence must be of relevance. The authorization process is not a hearing on the merits of the claim, but rather a filtering process which serves to ensure that the proposed class action is not void of any serious legal foundation. The presiding judge should be prudent in his or her approach and should not authorize the introduction of any irrelevant evidence at the authorization stage, even if this evidence would be considered relevant at a hearing on the merits of the case. The burden of showing that the proposed evidence is useful and relevant rests on the party wishing to introduce same.

With respect to the evidence which the Respondents sought to introduce in this case, the first set of affidavits dealt with the sales volume of the two types of implants in dispute, while the other affidavits and the scientific literature addressed the different models of implants at issue and the surgical techniques associated with them. These documents purported to identify the number of potential class members in the proposed class and to show the diversity and absence of similarity of the issues in dispute between the various class members of the proposed group, on the basis that they had different models of implants which were inserted using different techniques. The Court found that the proposed class action was premised on allegations that the implants at issue were defective and that these allegations, in and of themselves, were enough to constitute a significant common issue shared by all of the proposed members of the group. Therefore, any evidence purporting to demonstrate a lack of similarity between the two types of hip implants at issue was found to be of no relevance at the authorization stage of the proceedings, although the Court did assert that it may be presented at the trial on the merits of the claim.

The Court summarily refused to allow the introduction of the part of the correspondence that the Respondents sought to introduce which contained factual information not in the Court record on the basis that it could not be of any assistance to the Court in its appreciation of the criteria for authorization of the class action.

However, the Court permitted the Respondents to file the other materials pertaining to the recall of the implants as well as the part of the correspondence which related to these recalls. The Court found that this information would allow it to better understand the circumstances surrounding the recalls, which form the basis of the Petitioner's claim since the Petitioner points to this as evidence of the alleged defectiveness of the implants, which he claims, caused damages to the proposed class members.


This decision follows a recent trend of cases which demonstrates the Court's recent tendency to limit the introduction of evidence at the authorization stage of a class action. The concern with having the authorization process turned into a heavy and complex factual hearing appears laudable and seems to be the underlying justification for this trend. However, it is typically the respondents who seek to adduce evidence at the authorization stage in an attempt to oppose the authorization/certification of the class action on the basis that the proposed claim lacks reasonable legal and/or factual grounds. The restrictive interpretation applied by the Court as to the type of evidence considered appropriate for a hearing on the authorization of a class action claim adds yet another obstacle for respondents seeking to oppose motions for authorization. An overly narrow interpretation of the criteria for the introduction of evidence risks stripping respondents of one of the few tools available to them at this stage of the proceedings and may ultimately result in the Court depriving itself of evidence that would otherwise reveal that a proposed class action claim is conceptually ill-founded from the outset.

by Rachel April Giguère and Sidney Elbaz  

1 2013 QCCS 3050.
2 Article 1002 Code of Civil Procedure (« CCP »).
3 Option aux Consommateurs v Banque Amex du Canada, 2006 QCCS 6290.
4 Articles 4.1 and 4.2 CCP.

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013