Authors: Nicolas Brochu, Marc-André Lemire, Louis-Paul Gamache
Publication ǀ November 6, 2020
On October 30, 2020, the Supreme Court of Canada rendered a judgment on appeal from the Quebec Court of Appeal in Desjardins Financial Services Firm Inc. v. Asselin, regarding the authorization to institute a class action. The Honourable Justice Kasirer, writing for the majority, held that in Quebec, caution must be exercised at the authorization stage, and any doubt should weigh in favour of the continuation of the proceedings.
The plaintiff Ronald Asselin's cause of action in this case can be summarized as follows: between March 2005 and June 2007, Mr. Asselin purchased through a financial planner employed by Desjardins Financial Services Firm Inc. ("Firm") two types of guaranteed capital investments presented as being safe and providing an attractive return. Neither the financial planner nor the various documents promoting these investments indicated the specific risks affecting their return potential. These investments were allegedly designed and managed by Desjardins Global Asset Management Inc. ("Management") and involved, among other things, investments exposed to asset-backed commercial papers.
Following the 2008 financial crisis, Mr. Asselin received an investment statement informing him that his investments had not generated any return. He then filed a motion for authorization to institute a class action against Firm and Management, alleging against Firm a breach of its duty to inform and against Management a breach of its duties of competence in the design and the management of the investments. With respect to Firm, Mr. Ronald Asselin argued that there was a dual fault:
- Firm systematically breached its duty to inform by failing to adequately inform all of its representatives of the risk and characteristics of the investments.
- The representatives, having received false, misleading or incomplete information, then failed to adequately inform the group’s members.
The missing information at the group level includes the level of risk involved in the investments, their volatility and the way they worked, including the leverage used.
The Quebec Superior Court refused to authorize the class action, finding that there was no arguable case against Firm and that there were no common questions that satisfied the conditions set out in article 1003 of the former Code of Civil Procedure (which corresponds to article 575 of the new Code of Civil Procedure). The Court of Appeal allowed Mr. Asselin's appeal and authorized the class action against Firm and Management.
The Supreme Court, by a majority of 6 to 3, concluded that the intervention of the Court of Appeal was justified and that it was right to authorize the class action proposed by Mr. Asselin.
On the basis of three of its decisions, the Supreme Court confirmed the applicable analytical framework: the threshold for authorizing a class action in Quebec is a low one: the judge’s role is to filter out frivolous claims, and nothing more. At the authorization stage, Quebec case law calls for "a flexible approach to the common interest that must exist among the group’s members". Once the conditions of the Code of Civil Procedure are met, the judge must authorize the action; the judge has no residual discretion to deny authorization on the pretext that a class action is not the most appropriate vehicle.
Writing for the majority, Justice Kasirer concluded that the factual allegations relating to the dual fault could be identified easily, and they must therefore be assumed to be true at the authorization stage.
With respect to common questions, the Supreme Court points out that in Quebec, there is no requirement that they predominate over individual questions. The fact that the situations of all members of the group are not perfectly identical does not mean that the group does not exist or is not uniform. A single common question is sufficient as long as it advances the litigation in a not insignificant manner. It is not necessary that the common question be determinative of the outcome of the case. A common question may advance the litigation even if many individual questions remain.
Dissenting in part, the Honourable Justice Côté, with Justices Moldaver and Brown concurring, considered that the elements of fault, causation and injury raised by Mr. Asselin on behalf of the group were highly variable and therefore concluded that the common questions test was not met. On the contrary, the majority, per Kasirer J., held that the question of whether Firm misinformed its representatives, leading to a widespread and systematic failure to inform investor clients, is, by definition, a common question for all class members. The systematic nature of the alleged omissions in both cases makes it possible to identify common questions in the proposed action. While the duty to inform varies depending on the context, there are circumstances where all class members have been deprived of information as a result of a systematic omission; the alleged omission does not depend on each client’s individual characteristics.
However, the appeal is allowed in part for the sole purpose of clarifying the scope of the claim for punitive damages. Mr. Asselin claimed punitive damages from Management pursuant to articles 6 and 49 of the Charter of Human Rights and Freedoms for unlawful and intentional interference with his right to peaceful possession of his property.
This decision is also relevant in for the distinction it draws between the duty to inform and the duty to provide advice, the Supreme Court noting that the duty to inform is an obligation of result. In the case of an obligation of result, the mere proof by the creditor that the result was not achieved is sufficient to give rise to a presumption of liability of the debtor, who then has the burden of proving that the information was provided.
The significance of the Supreme Court's decision is not limited to class actions involving investors. The decision clarifies the state of the law at the authorization stage for all cases where a breach of the duty to inform of a generalized and systematic nature is alleged. Thus, we may expect to see the courts applying the principles set forth by the Supreme Court in Asselin in other cases as well, including, for instance, in the opioid class action lawsuit, in which Fishman Flanz Meland Paquin acts as plaintiff's counsel in collaboration with Trudel Johnston & Lespérance.
 2020 SCC 30.
 Infineon Technologies AG v. Option consommateurs, 2013 CSC 59, Vivendi Canada Inc. v. Dell’Aniello, 2014 CSC 1, and L’Oratoire Saint‑Joseph du Mont‑Royal v. J.J., 2019 CSC 35.
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