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CLASS ACTION - Authorization - Serious appearance of right - Identical, similar or related questions - Adequate representation of members

Friday, June 07, 2019 @ 1:40 PM  


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Appeals by Province Canadienne de la Congrégation de Sainte Croix (Congregation) and Oratoire Saint Joseph du Mont Royal (Oratory) from a judgment of the Quebec Court of Appeal setting aside a decision that dismissed the application for authorization to institute a class action for sexual abuse and assaults committed by their members. The representative plaintiff, JJ, alleged that he had been sexually abused by two members, since deceased, of the Congregation more than 50 years ago, when he was an altar boy at the Oratory. He sought to represent Quebec residents who were sexually abused by members of the Congregation in any educational institution, residence or summer camp or any other place in Quebec, including the Oratory. The Superior Court dismissed the application for authorization to institute the class action on the basis that it met none of the conditions provided for in the Code of Civil Procedure (CCP). The Court of Appeal set aside that judgment and unanimously authorized the class action against the Congregation, while the class action against the Oratory was authorized by the majority. Both the Congregation and the Oratory appealed, arguing that JJ’s action was prescribed on the basis of a term for forfeiture that now applied, pursuant to the second paragraph of art. 2926.1 of the Civil Code of Québec (CCQ), because the alleged assailants had died. The Oratory also argued that the allegations in the application were insufficient to support a cause of action in civil liability against it. In its view, the action could not apply to it solely because certain of the alleged acts occurred on its property.

HELD: Appeals dismissed. The Superior Court judgment was tainted by numerous errors, of fact and of law, in relation to all the conditions set out in art. 575 CCP. With respect to the commonality of issues, all class members clearly had an interest in having at least one common question decided: the Congregation’s liability for the alleged assaults on children by some of its members who were engaging in activities with those children with the consent or under the authority of the Congregation’s officers. Concerning the sufficiency of the alleged facts, the Superior Court judge overstepped the bounds of his screening role by considering the merits of the case at the authorization stage. The Court of Appeal correctly stated that he had been wrong to speculate that the alleged assailants could have belonged to other religious communities. The Court of Appeal’s conclusion that the prima facie evidence that close to 30 members of the Congregation sexually abused minor children over a significant period of time was indicative of the probable existence of a modus operandi on the assailants’ part was not unreasonable. Regarding JJ’s status as representative plaintiff for the class members, the Superior Court judge erred in concluding that the leading role played by JJ’s lawyers in bringing the application was inconsistent with JJ’s status. It was perfectly normal in this type of class action for sexual assault victims, including the representative plaintiff, to take advantage of the right to anonymity and for contact with members to be maintained primarily through the representative plaintiff’s lawyers. Given the numerous errors made by the Superior Court judge with respect to the conditions of art. 575 CCP, the Court of Appeal was clearly right to substitute its own assessment for that of the application judge. A connection seemed to exist between the Congregation and the Oratory, which was managed by members of the former. The allegations relating to the Oratory’s direct liability were actually allegations relating to faults of members of the Congregation acting as directors of the Oratory in their failure to put a stop to the sexual abuse. The Religious Corporations Act confirmed that the members of the religious community now known as the Congregation who worked at the Oratory as officiating priests or as directors could have remained closely connected with the Congregation. The Oratory would still be able to raise a defence at trial in order to deny the existence of such a connection, but it was not appropriate to consider possible defences in this regard at the authorization stage. The Oratory and Congregation argued that because JJ’s action was brought more than three years after the deaths of his two alleged assailants, his right of action was irreparably forfeit. The second paragraph of art. 2926.1 CCQ continued the rules with respect to prescription that applied before the legislature enacted it in 2013. It did not establish a term for forfeiture. The starting point for the three-year period applicable for instituting actions for damages for bodily injury resulting, as in the instant case, from sexual assault was when the victim became aware that the injury suffered was attributable to the assault. JJ’s allegation that he did not become aware of that connection until 2011 must be assumed to be true at the authorization stage. Further, the second paragraph of art. 2926.1 CCQ did not apply to an action that, like this one, did not involve the successions of the authors of the alleged acts.

L'Oratoire Saint-Joseph du Mont-Royal v. J.J., [2019] S.C.J. No. 35, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., June 7, 2019. Digest No. TLD-June32019015-SCC