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| By Catherine McKenzie |
In the last
couple of years, there have been a series of judgments in Quebec on the
certification of class actions which have denied certification in part because
of the quality of the proposed representative plaintiff. An example of such a
judgment – and one that contained important statements regarding the
appropriate role of counsel in class actions – was Justice Yergeau’s decision
in Sibiga v. Fido Solutions, (2014) QCCS 3235. That decision has been
overturned in the recent decision of the Court of Appeal in Sibiga v. Fido Solutions inc. (2016
QCCA 1299) penned by Justice Kasirer.
That
decision overturned Justice Yergeau’s analysis (which had been rendered before
the Supreme Court’s decision in Infineon)
on several issues, but the one that I will concentrate on here regards the representative
Plaintiff.
The
background of this case is well summarized by the Court of Appeal:
[17] The appellant is a Quebec consumer who has
a wireless telephone contract with Fido Solutions Inc. In September 2012, she used
her mobile phone on approximately six occasions to access the Google Map
service through the internet while travelling on holiday in the United States.
She had chosen not to avail herself of a pre-paid travel plan offered by Fido
that would have entitled her to a reduced rate for roaming mobile data services
outside of Canada. As a result, she was billed on a pay-per-use basis for 40.82
megabytes (MB) of roaming data used at a rate of $6.14 per MB. According to her
monthly account summary, she owed $250.81 for the roaming data used in the
United States in addition to the amount of her usual monthly invoice.
[18] The appellant says she was disagreeably
surprised at the additional amount charged at the time but paid it without
complaint.
[19] In December 2012, she received a mass
email from the law offices of Trudel & Johnston announcing that the
Montreal firm had undertaken an investigation of international roaming fees
charged to Quebec consumers using their wireless mobile devices. The firm had
been examining the viability of a consumer class action based on unfair
international roaming fees before they met the appellant. The email invited consumers
who had received bills they considered to be excessive to contact the firm. The
appellant did so shortly thereafter.
[20] With Trudel & Johnston acting on her
behalf, the appellant filed a motion for authorization to institute a class
action and obtain the status of representative in the Superior Court on January
8, 2013. The named defendants were Fido, Rogers Communications Partnership,
Bell Mobility Inc. and Telus Communications Company.
[21] In the motion, the appellant alleges that
the respondents had charged international roaming fees to Quebec consumers that
are disproportionate and exploitative, in violation of section 8 of the Consumer Protection Act. The contracts
between consumers and the named wireless service providers are also alleged to
be abusive within the meaning of article 1437 C .C.Q. The core claim of the class action
is stated in paragraph 2.19: “[…] the available evidence at this stage clearly
demonstrates that the underlying cost of providing international mobile roaming
data represents a minuscule fraction of the retail rates charged by the
Respondents and that such retail rates are disproportionate, exploitative, and
abusive”.
[22] The appellant claimed that the facts
alleged gave her an individual right of action, as a consumer, against Fido,
the wireless service provider with whom she was a subscriber, and also gave
rise to actions on behalf of class members who contracted with the other
respondents. (Rogers and Fido are related companies). The class is described in
the motion as follows:
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Tous les consommateurs qui
résident au Québec et à qui les Intimés ont chargé des frais d'itinérance
pour les données à un taux excédant 5,00 $ par mégaoctet après le 8 janvier
2010.
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All consumers residing in
|
[23] By way of redress on the merits, the
appellant sought a declaration that international mobile data roaming fees
charged by the respondents violate the CPA and article 1437 C .C.Q. She sought to
reduce the amounts payable for the international roaming fees to an amount
equal to their fair market value as well as an order to compensate her and
other members of the class for the amounts overcharged. Finally, she asked for
collective recovery of punitive damages. (Our emphasis)
Justice Yergeau
had found that the proposed representative plaintiff could not adequately
represent the group because of the manner in which she had been recruited to
serve as representative plaintiff and her lack of knowledge regarding the claim:
[98] The judge found that the appellant was not
in a position to represent members of the class adequately for two reasons.
First, she had an insufficient interest in the suit because of the lead taken
by counsel in planning and instituting the class action. The judge read the
reference to adequate representation in article 1003(d) as an indication by the
legislature that the role of the representative must be “au-delà de la simple
figuration” (para.
[140]) and more than a “simple présence passive” (para.
[148]). The lawyers recruited the appellant and, according to the judge’s view
of things, she would not have any meaningful authority to withdraw their
mandate if she lost confidence in their conduct of the case. Secondly, he found
that the appellant lacked competence to act as representative for the class as
a whole. Her testimony during the examination on discovery indicated that she
has an insufficient understanding of the class action that had been instituted
in her name. The judge made special mention of one of her answers suggesting
she did not understand the calculation of $5 per MB charged that is the basic
measure for membership in the class.
Justice
Kasirer agreed with the Appellant that these were not sufficient reasons to
find that the proposed representative wasn’t adequate. On the issue of class
counsel’s role, Justice Kasirer wrote:
[102] While it is not inappropriate to be mindful
of possible excesses of what some have described as “entrepreneurial lawyering”
in class actions, it is best to recognize that lawyer-initiated proceedings
are not just inevitable, given the costs involved, but can also represent a
social good in the consumer class action setting. As Perrell J. wrote in
one Ontario case, “the entrepreneurial nature of a class
proceeding can be a good thing because it may be the vehicle for access to
justice, judicial economy, and behaviour modification, which are all the
driving policy goals of the Class
Proceedings Act, 1992” . Scholars have observed that, within the proper
limits of ethical rules that bind all lawyers, courts should recognize that
lawyer-initiated consumer class actions can be helpful to meet the access to
justice policy goals of the modern law of civil procedure. In my view, the fact that lawyers play an
important, even primary role in instituting a consumer class action is not in
itself a bar to finding that the designated representative has the requisite
interest in the suit. Where the personal stake of a consumer representative is
small – here, the appellant was charged $250.81 for roaming, of which only a
portion is alleged to be overpayment – it is often unrealistic to insist upon a
consumer-initiated class action.
[103] A lawyer-initiated consumer class action is
not inherently incompatible with an acceptable solicitor-client relationship,
nor does it mean that the client has “no control” over counsel. Article 1049 C .C.P. requires that a lawyer
act for the representative. In our case, the appellant retains the authority to
walk away from the class action, with permission of the court, and the lawyers
cannot unilaterally “dismiss” the client as representative of the class. The
judge was wrong to suggest that the fact that the lawyers chose their client
here means that the appellant is an inadequate representative. As my colleague
Dufresne, J.A. wrote in Fortier:
[147] Cela
dit, les juges peuvent déceler, à l’occasion, des indices qui laissent croire
que les démarches ayant donné naissance à la requête portent fortement
l’empreinte des avocats, mais cela ne discrédite pas nécessairement celui ou
celle qui fait valoir une cause d’action qui apparaît suffisamment sérieuse
alors que, sans lui, le groupe serait privé de l’exercice d’un droit.
[104] Nothing in the record suggests that the
appellant is not a genuine claimant and nothing suggests unethical conduct on
the part of her counsel, either in the “investigative” stage of the case or
after proceedings were instituted. I see nothing that would disqualify her by
reason of the implication of her lawyers. In my view, denying her that status
for that reason appears to contradict the policy basis upon which class actions
are founded. If lawyers’ role is to be reconfigured in this setting, it strikes
me that article 1003(d), as drafted, is not a sound basis for achieving that
end. (Emphasis added)
On the issue
of whether she was competent to represent the class adequately because of her
knowledge of the claim, Justice Kasirer wrote:
[106] The judge was harsh in his evaluation of the
appellant’s comprehension of the class action. She misunderstood “un élément capital du
syllogisme élaboré par les avocats” in that she did not grasp the means of calculating the $5 per MB
threshold for membership in the class action (para. [155]). For the judge, the
appellant’s mistake on this point “touche à l’essence” of the
class action, and signalled that she did not understand “le raisonnement
développé par les avocats au dossier” (para. [157]). She could not therefore offer adequate
representation to members of the class.
[107] Here again, respectfully stated, I find
myself unable to agree with the judge.
[108] It is best to recognize, as does the
appellant herself in written argument, that she may not have a perfect sense of
the intricacies of the class action. This is not, however, what the law
requires. As one author observed, Quebec rules are less strict in this regard
that certain other jurisdictions: not only does the petitioner not have to be
typical of other class members, but courts have held that he or she “need not
be perfect, ideal or even particularly assiduous”. A representative need not
single-handedly master the finery of the proceedings and exhibits filed in
support of a class action. When considered in light of recent Supreme Court
decisions where issues were equally if not more complicated, this is
undoubtedly correct: in Infineon, for
example, the consumer was considered a competent representative to understand
the basis of a claim for indirect harm caused down the chain of acquisition for
the sale of computer memory hotly debated by the economists; in Vivendi, the issue turned on the
unilateral change by the insurer of in calculations of health insurance
benefits to retirees and their surviving spouses; in Marcotte, the debate centered on currency conversion charges
imposed by credit card issuers. It would be unrealistic to require that the
representative have a perfect understanding of such issues when he or she is
assisted, perforce, by counsel and, generally speaking, expert reports will eventually
be in the record to substantiate calculations of what constitutes exploitative
roaming fees.
[109] To my mind, this reading of article 1003(d)
makes particular sense in respect of a consumer class action. Mindful of the
vocation of the class action as a tool for access to justice, Professor Lafond
has written that too stringent a measure of representative competence would
defeat the purpose of consumer class actions. After reviewing the law on this
point, my colleague Bélanger, J.A. observed in Lévesque v. Vidéotron,
s.e.n.c., a consumer class action, that article 1003(d) does not impose an
onerous burden to show the adequate character of representation: “[c]e faisant, la Cour suprême envoie un
message plutôt clair quant au niveau de compétence requis pour être nommé
représentant. Le critère est
devenu minimaliste”. In Jasmin v. Société des alcools du Québec, another consumer action, Dufresne,
J.A. alluded to the Infineon standard
and warned against evaluations of the adequacy of representation that are too
onerous or too harsh, echoing an idea also spoken to by legal scholars.
[110] In keeping with the “liberal approach” to
the interpretation of article 1003(d), especially suited with the consumer
class action, it suffices here that the appellant understand, as she has
alleged, that she was billed a disproportionate amount for roaming because of
the unfair difference between the amount charged and the real cost of the
service to the respondent Fido. She must know that, like herself, others in the
class, whether roaming in the U.S. or elsewhere, were also disproportionately
billed, either with her own service provider or others who offer like services
to Quebecers. She of course must see that her claim raises common questions
with others in the class and that she is prepared to represent their interest
and her own going forward.
[111] The examination before plea suggests that
she had this understanding:
Q. [12] O.k. And when you say «the reason for
being here», can you expand on that a little?
A. Sure. Well, basically what has happened to
me and what, I know that it happens quite often to a lot of people, is that I
was charged very a large sum of money for roaming fees when I went away for a
week to the United States last year and I basically, I mean, you know, I've used
my phone a certain way, I knew that I was going to, you know, get charged a
little bit but when I received my bill, it was, I was extremely shocked to see,
you know, the actual, the bill that I was expected to pay. And this is why,
when I heard from Bruce approached me about this, that's why I immediately came
forward because it was, I think a lot of people basically have this situation
happening to them every month. So that's why I'm here.
[112] In addition, the appellant’s testimony
indicates that she has a clear understanding of wireless services and
international roaming data. She understands too that in order to succeed, she
will have to establish the cost of roaming services and is prepared to join
counsel in making efforts to obtain this information.
[113] In my respectful view, the judge failed to
apply the liberal standard called for by the Supreme Court, both by
misapprehending the consequences of counsel’s initiatives and by requiring a
level of understanding of the claim that is too harsh for a consumer class
action. This is not an instance in which the adequacy of the representative is
compromised in a manner that, to revert to the Infineon standard quoted above, “could not possibly proceed fairly”. Indeed, neither the judge nor the
respondents in their arguments on appeal advance any serious suggestion that
the fairness of the class action was threatened by the recognition of the
appellant as class representative. Moreover, if ever the appellant were
considered to no longer be in a position to represent the class members
properly, the law provides a mechanism whereby she could be replaced by another
member of the class at a later stage in the proceedings.
Finally,
Justice Kasirer addressed a point raised by Respondents counsel regarding the
impact that the decision of the Supreme Court in Marcotte on the issue of interest might have on whether a representative
is considered adequate:
[115] As a final point, counsel for the
respondents argued that given the change in the law relating to standing since Marcotte, the rules on adequate
representation in article 1003(d) should be more strictly enforced. In service
of this argument, they point to dicta
in the judgment of this Court in Marcotte
where Dalphond, J.A. suggested that article 1003(d) stood as a protection
against unmanageable or unfounded class actions against unconnected defendants.
Indeed, one might argue that the adequacy of representation, as well as the common
question requirement, might prove to be especially important on the facts of a
given case where there are members of the class who, unlike the representative,
have no direct cause of action against one or another defendant. But a new
reading of articles 1003(a) and 1003(d) C.C.P. cannot be proposed in a manner
that would revive the standing debate that Marcotte
has put to rest. It might also be recalled in this context that Quebec does not
have a typicality test for the representative, and that article 1003(d) should
not be interpreted to create one. What is important, in the present case,
is that the appellant plainly understood the allegation that, like her,
consumers with other service providers paid for that service at unfair rates.
And as we shall see in the next section, the common question requirement was
met for all members of the class, including those with Telus or Bell contracts.
(Emphasis added)
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