Canada: Supreme Court Of Canada Rules That Commonality Requirement In Class Actions Is Broader And More Flexible In Quebec

On January 16, 2014, the Supreme Court of Canada (SCC) rendered its decision in Vivendi Canada Inc. v. Dell'Aniello, concluding that the commonality requirement in Quebec civil procedure for the authorization of a class action is broader and more flexible than it is in the common law provinces. In a unanimous decision, the SCC ruled that it is not necessary that the common questions lead to common answers to meet this criterion. All that is needed is the existence of an identical, related or similar question of law that, once answered, will resolve a portion of the litigation. The SCC also confirmed that once the four criteria for the authorization of a class action in Quebec are met, the authorization must be granted. The principle of proportionality must be considered when assessing the four authorization criteria and does not constitute a separate authorization criterion.


The petitioner filed a motion for authorization to institute a class action following the unilateral amendments made by Vivendi S.A. (Vivendi) to its health care insurance plan (Plan), which it sponsored for its retirees and their eligible dependants. The contested amendments had the effect of reducing the health care coverage under the Plan.

The motion judge dismissed the motion for authorization on the basis that the commonality requirement was not met. The judge based his conclusion on the view that there were five subgroups of members in the proposed class and that the rights in regard to each subgroups were different. As a result, it would be necessary to proceed with different analyses to determine their various rights. The motion judge concluded that the rights of some proposed class members had not yet crystallized and that, since the members of the proposed class lived in different Canadian provinces, it would be necessary to analyze the claim based on the different applicable provincial laws.

The Court of Appeal reversed the motion judge's decision and authorized the class action. The Court of Appeal held that the motion judge had erred in finding that the commonality requirement was not met. The determination of whether or not this criterion is met must be based on the questions at issue rather than on the factual differences that might apply to inquiries necessary to answer those questions. The Court of Appeal also stressed that the motion judge overstepped the boundaries when assessing the class members' crystallization of rights issue, as it is an issue to be addressed on the merits.

Vivendi appealed this decision to the SCC.

The Commonality Requirement

The SCC examined the commonality requirement for the authorization of a class action in Quebec pursuant to art. 1003(a) of the Code or Civil Procedure (CCP), which provides that "the recourses of the members raise identical, similar or related questions of law or fact", and made two observations. First, the SCC drew attention to the fact that this requirement refers to common questions rather than to common answers. Second, the SCC compared the commonality requirement in Quebec with the requirements found in the various common law provinces' legislation and concluded that this requirement is broader and more flexible in Quebec since it requires the existence of identical, similar or related questions rather than "common issues". In the SCC's view, not all questions of law or fact that are merely "related" or "similar" could be qualified as "common issues". Consequently, the SCC held that the test in Quebec is less stringent than in the common law provinces.

Applying these principles on the interpretation of the commonality requirement in Quebec, the SCC concluded that the motion judge had erred in his analysis and that this requirement was met since there are identical, similar or related questions in the claims with respect to the legality or validity of the amendments to the Plan.

The Principle of Proportionality

Vivendi argued that an interpretation of the commonality criteria that would allow the authorization of a class action whereby multiple substantive analyses would be necessary is contrary to the principle of proportionality recognized in Quebec civil procedure at art. 4.2 CCP. The SCC rejected this approach and concluded that in a class action context, the authorization to institute a class action could not be refused on the basis of the principle of proportionality if the four criteria found at art. 1003 CCP are met. The SCC stated that this conclusion is supported by the fact that in enacting class action provisions, the Quebec legislature did not require that a class action be the "preferable" mode of procedure. According to the SCC, the criteria set out at art. 1003 CCP are exhaustive. The principle of proportionality must be considered when assessing those criteria. However, once those criteria have been met, it is not possible to rely on the principle of proportionality to refuse authorization.


The SCC's decision on the interpretation of art. 1003 (a) CPC is surprising. However, this interpretation of the commonality test should not be limited solely to Quebec cases: it should also be read in the context of the very specific circumstances of this case. The fact that an answer could be given to the proposed common issue in a way that would advance the litigation for a significant portion of the group or sub-groups after a common issue trial was a determinant factor for the Court. This will not always be the case and there is still room to argue that not every proposed common issue in a given case would meet that test.   The plaintiff must still demonstrate that the common issue(s) trial will advance the litigation for the members of the class.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions