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

Thursday, April 20, 2017 @ 8:42 AM  


Lexis Advance® Quicklaw®
Application by Benizri for authorization to institute a class action on behalf of persons in Quebec who were directly inconvenienced by the installation of a Canada Post community mailbox on or adjacent to their property or within a 10-meter radius of their property. Canada Post started installing community mailboxes in 2014 in order to cease door-to-door delivery of mail parcels. Benizri complained about excessive noise, aesthetic displeasure, safety issues and loss of privacy after Canada Post installed a community mailbox on the eastern side of his fenced property in May 2015. He argued that the culmination of these annoyances would decrease the value of his property and those of the class members.

HELD: Application dismissed. Benizri demonstrated that it was arguable that Canada Post was a neighbour within the broad interpretation of that term under art. 976 of the Civil Code of Quebec. However, he did not establish an arguable case for excessive noise. Benizri also failed to provide facts supporting the claim that he suffered excessive annoyances due to theft or other safety issues, nor did he demonstrate an arguable case for aesthetic annoyances. Benizri's complaints about the loss of privacy from persons peering through his fence was a vague assertion that was insufficient to demonstrate this annoyance was excessive or caused by the installation, use or maintenance of the community mailbox by Canada Post. Even if Benizri had demonstrated an arguable case for excessive neighbourly annoyances caused by the installation or maintenance of the community mailbox, there was no common question of fact or law that would significantly resolve each of the class member's claims. Finally, it would not be in the interests of the proposed class members to name Benizri as the class representative, as the proposed class action was filed on the recommendation of Benizri's nephew and counsel, without Benizri first verifying the veracity of the assertions contained in the application or even the existence of any other potential class member. The Court was not satisfied that Benizri had the competence or independence to vigorously and capably prosecute the interests of the class.

Benizri v. Canada Post Corporation, [2017] Q.J. No. 2213, Quebec Superior Court, The Honourable Silvana Conte J.S.C., March 13, 2017. Digest No. TLD-Apr172017009