Desjardins Financial Services Firm Inc. v. Asselin

Desjardins Financial Services Firm Inc. v. Asselin
Collection
Supreme Court Judgments
Date
2020-10-30
Neutral citation
2020 SCC 30
Case number
37898
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Quebec
Subjects
Civil procedure
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Desjardins Financial Services Firm Inc. v. Asselin, 2020 SCC 30
Appeal Heard: December 5, 2019 Judgment Rendered: October 30, 2020 Docket: 37898
Between:
Desjardins Financial Services Firm Inc. and Desjardins Global Asset Management Inc., a lawfully constituted legal person, formerly Desjardins Asset Management Inc.
Appellants
and
Ronald Asselin
Respondent
Official English Translation
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 159)
Reasons Dissenting in Part: (paras. 160 to 304)
Kasirer J. (Wagner C.J. and Abella, Karakatsanis, Brown and Martin JJ. concurring)
Côté J. (Moldaver and Rowe JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
desjardins v. asselin
Desjardins Financial Services Firm Inc. and
Desjardins Global Asset Management Inc., a lawfully constituted legal person, formerly Desjardins Asset Management Inc. Appellants
v.
Ronald Asselin Respondent
Indexed as: Desjardins Financial Services Firm Inc. v. Asselin
2020 SCC 30
File No.: 37898.
2019: December 5; 2020: October 30.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for quebec
Civil procedure — Class action — Authorization to institute class action — Conditions for authorizing action — Motion for authorization to institute class action in contractual liability for breach of duty to inform and in extracontractual liability for breach of duties of competence and management against financial institutions with respect to term savings investments — Superior Court dismissing motion — Court of Appeal setting aside judgment and authorizing class action — Whether Court of Appeal was justified in intervening in Superior Court’s decision — Code of Civil Procedure, CQLR, c. C‑25, art. 1003.
A is a member of a caisse populaire in the Desjardins Group. Between March 2005 and June 2007, he purchased two types of investments from his caisse populaire, Perspectives Plus Term Savings (“PP”) and Alternative Term Savings (“ALT”), by entering into deposit agreements. The investments essentially involved capital that was guaranteed at maturity and corresponded to the original value of the deposit, and a potential return that was variable. It is alleged that the investments were purchased as a result of representations made by a financial planner and mutual fund representative who was a subordinate or mandatary of Desjardins Financial Services Firm Inc. (“Firm”), which is part of the Desjardins Group and which specializes in financial services. Both the financial planner and various documents promoting the investments allegedly represented them as being safe and as providing an attractive return, despite the fact that they involved a specific risk that affected their return potential. It is alleged that the investments were designed and managed by Desjardins Global Asset Management Inc. (“Management”), which is also part of the Desjardins Group and which specializes in asset management.
In March 2009, A received a letter informing him that he would obtain no return on his PP and ALT investments up to the time they matured. In February 2010, A received an investment statement indicating that his investments had in fact yielded a return of 0 percent for 2009. In September 2011, A filed a motion in the Quebec Superior Court seeking authorization to institute a class action against Firm and Management. He argued that Firm was contractually liable to the members of the class action group for breaching its duty to inform. He claimed that Firm had not adequately informed him and the other members of the group of the risks associated with the investments, alleging both direct and indirect fault. He argued that Management was extracontractually liable to the group’s members for breaching its duties of competence with regard to design and management. He alleged that Management had used risky investment strategies, including strategies involving investments in asset‑backed commercial paper (“ABCP”), that had resulted in a loss of all the assets allocated to the return.
The Superior Court dismissed the motion for authorization to institute a class action against Firm and Management. The authorization judge found that A had not shown that his proposed action in contractual liability against Firm and in extracontractual liability against Management had a good colour of right as required by art. 1003(b) of the former Code of Civil Procedure of Quebec (“former C.C.P.”). The judge also found that there were no common questions as required by the condition set out in art. 1003(a) of the former C.C.P., though she neglected to deal with that condition in relation to the action against Management. The Court of Appeal allowed A’s appeal and authorized the class action against Firm and Management.
Held (Moldaver, Côté and Rowe JJ. dissenting in part): The appeal should be allowed in part.
Per Wagner C.J. and Abella, Karakatsanis, Brown, Martin and Kasirer JJ.: The Court of Appeal was correct to authorize the class action proposed by A both against Firm and against Management. The authorization judge erred in analyzing certain aspects of the conditions set out in subparas. (a) and (b) of art. 1003 of the former C.C.P. (which correspond to subparas. (1) and (2) of art. 575 of the new Code of Civil Procedure). However, the appeal should be allowed in part for the sole purpose of varying paras. 8 and 9 of the Court of Appeal’s judgment in order to clarify the scope of the claim for punitive damages.
The Court of Appeal adhered perfectly to the analytical framework established in Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600, Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3, and L’Oratoire Saint‑Joseph du Mont‑Royal v. J.J., 2019 SCC 35, even though the last of these cases was decided after the judgment under appeal. The threshold for authorizing a class action in Quebec is a low one. Once the four conditions set out in art. 1003 of the former C.C.P. 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. Questions of law may be resolved by an authorization judge if the outcome of the proposed action depends on the judge’s doing so, but this choice is generally a discretionary one. This reflects the purpose of the authorization stage of the class action: the judge’s role is to filter out frivolous claims, and nothing more. In analyzing a motion, an authorization judge must avoid adopting a rigid approach and must read the wording of the motion to discover the full message it conveys, including the necessarily implied message. Finally, there is no requirement in Quebec that the common questions predominate over the individual ones. On the contrary, a single common question is enough if 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.
Here, the allegations are sufficient to establish an arguable case against Firm in accordance with the condition set out in art. 1003(b) of the former C.C.P. It is in principle not appropriate at the authorization stage for the court to make any determination as to the merits in law of the conclusions in light of the facts being alleged. The proposed syllogism is neither frivolous nor clearly unfounded in law. The allegations are precise enough to be assumed to be true, and there is a sufficient basis for them in the evidence adduced.
A’s syllogism is based on a breach by Firm of its duty to inform. In his motion, A explains right in the summary that he is alleging that Firm and Management breached and violated the obligations and duties of information, competence and management. Firm allegedly failed to inform adequately the group’s members of the risky transactions conducted using the amounts the members had entrusted to it. With regard to injury, A explains the loss of a return resulting from risky investment strategies; with regard to causation, he states that he would never have agreed to invest in the PP and ALT investments if Firm had adequately informed him of the risks associated with them. The faults are described with sufficient precision, and the information missing for the entire group relates, among other things, to the level of risk involved in the investments, their volatility and the way they worked, including the leverage used.
It can be understood from these allegations that the proposed action is based not on a breach of the deposit agreements, but rather on a generalized and systematic breach of the duty to inform. A alleges that Firm systematically breached this duty by not adequately informing all of its representatives of the risks and characteristics of the investments (the direct fault). According to the facts alleged in the motion, the representatives, having received false, misleading or incomplete information, then failed to provide adequate information to the group’s members (the indirect fault). Firm’s alleged dual fault, and the basis for the action, is a generalized and systematic breach of its general duty to inform. This dual fault refers, in other words, to two sides of the same coin: Firm’s breach of its duty to inform the group’s members directly itself, and to inform them indirectly through its representatives.
A person who provides financial services is indeed subject to a duty to inform, and failure to comply with that duty may give rise to civil liability, for which the principal or mandator of the financial adviser at fault must answer. The group’s members were linked to Firm by a contract for services within the meaning of art. 2098 of the Civil Code of Québec or, if the services were not paid for directly, a similar sui generis contract. Grounded in the general obligation of good faith (arts. 6, 7 and 1375 of the Civil Code of Québec), the duty to inform relates to all contracts and, in principle, applies to all contracting parties. There is a distinction between the duty to provide advice and the duty to inform. The obligation to inform is an obligation to reveal to another facts that the latter, in order to adjust his or her conduct, may legitimately expect to receive. The obligation to provide advice is an obligation to provide counsel to another in the furtherance of the latter’s interest. The duty to inform is less onerous and less individualized than the obligation to provide advice.
In Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554, the Court observed that the scope of the obligation to inform is assessed on the basis of the following criteria: (1) knowledge of the information, whether actual or presumed, by the party which owes the obligation to inform; (2) the fact that the information in question is of decisive importance; (3) the fact that it is impossible for the party to whom the duty to inform is owed to inform itself, or that the creditor is legitimately relying on the debtor of the obligation. In the case at bar, Firm knows or is presumed to know the characteristics of the investments it recommends. A alleges that he would never have agreed to invest in the PP and ALT investments if he had been adequately informed of the risks associated with them and that it was impossible for him to inform himself of Management’s investment strategies.
The motion does not allege a positive misrepresentation; it alleges an omission corresponding to a breach of the duty to inform, which, unlike the duty to provide advice, is an obligation of result. Mere proof by the creditor that the result was not achieved is sufficient to give rise to a presumption that the debtor is liable. At the authorization stage, the applicant bears the burden of demonstrating that the proposed legal syllogism is arguable, not the burden of proving each element of the syllogism on the usual civil balance of probabilities standard. In this context, the evidence adduced by A in support of allegations that must be assumed to be true is more than sufficient. The action can be authorized without proof on a balance of probabilities that A was not given the information. A filed many documents to support allegations concerning Firm’s failure to disclose, to all clients, the risks associated with the methods used to manage the investments. It is argued that the choice made by Firm and its representatives to rely on the documents is evidence of the breach of the contractual duty to inform alleged in support of Firm’s indirect contractual liability. A’s pre‑hearing examination is also relevant evidence with respect to the non‑performance of an obligation to do something, such as an absence of advice or information. The breach amounts to a negative, which is inherently difficult to establish persuasively, but which can be proved simply by testimony.
The common questions condition set out in art. 1003(a) of the former C.C.P. is also met with respect to the proposed action against Firm. At the authorization stage, the decisions of the Quebec courts and of the Court require a flexible approach to the common interest that must exist among the group’s members. As a result, even where circumstances vary from one group member to another, a class action can be authorized if some of the questions are common. 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. In Quebec, a single common question is sufficient as long as it advances the litigation in a not insignificant manner. The class action in this case concerns a contractual breach of the duty to inform that grounds both Firm’s direct liability and its indirect liability. In both cases, the alleged omissions are systematic in nature and do not depend on each client’s individual characteristics. The systematic nature of these omissions in both cases makes it possible to identify common questions in the proposed action against Firm under art. 1003(a).
The motion filed by A indicates that the group’s members were systematically misinformed. By giving its representatives documents that were misleading or incomplete, Firm misinformed them and did not give them the means to adequately inform the group’s members. The information provided to the members was therefore necessarily wrong or insufficient, if not false, deceptive or misleading. The systematic nature of Firm’s breach is thus clearly alleged and must be assumed to be true. Moreover, the information in question was objective information that Firm never gave the representatives or the members concerning the risky nature of the investments.
The position taken in the motion is not based on the individual liability of a financial adviser to a particular client, which would depend on evidence of each client’s profile to establish whether the investment was in fact appropriate. The alleged fault is a breach of a general obligation to inform that affected each member, not a breach of an individualized obligation to properly advise a client. Although the duty to inform varies with the context, there are circumstances in which all creditors were deprived of information as a result of a systematic omission. In this case, A specifically alleges the existence of such circumstances, in which an informational imbalance and Firm’s control of the information are common to all the members. Indeed, A alleges that the group’s members could not have known the information that Firm had about how the investments worked even with all due diligence. A class action based on a brokerage firm’s liability for the conduct of its representatives is therefore possible if the issue is whether the information provided by the firm to its representatives and to the group’s members was insufficient, with the result that a general duty to inform was breached. To conclude otherwise would deprive the class action of part of its role of helping people who, for economic and other reasons, face barriers in asserting their rights. The Court of Appeal was accordingly justified in intervening. It appears that the authorization judge considered the common questions condition from the perspective of an action based on the duty to provide individualized advice tailored to each client’s risk tolerance even though that was not the basis for A’s action.
It is conceded that it can be argued that Management is liable as the designer of the investments. On the issue of whether the case against Management is an arguable one, the syllogism proposed by A is neither circular nor untenable. A does not merely say in his allegations that Management’s practices were risky because the investments did not generate a return; he makes concrete allegations against Management. These allegations are sufficiently precise. As for the impact of the 2008 financial crisis on the causal link between Management’s alleged extracontractual faults and the loss for which A is seeking compensation, this is an issue that goes to the merits of the case.
A is claiming punitive damages from Management pursuant to ss. 6 and 49 of the Charter of human rights and freedoms for unlawful and intentional interference with his right to the peaceful possession of his property. For the purposes of that claim, he alleges that a significant portion of the money market investments in the PP and ALT investments consisted of ABCP. Management submits that any claim relating to ABCP has been extinguished as a result of the Sanction Order made by the Ontario Superior Court of Justice as part of the restructuring of the ABCP market carried out under the Companies’ Creditors Arrangement Act (“CCAA ”). The motion judge found that the claim based on ABCP was, on its face, barred, but she did not refer to the distinction between “Affected ABCP” and “Unaffected Claims” as dealt with in the Third Amended Plan of Compromise and Arrangement that was the subject of the Sanction Order.
The Court of Appeal correctly found that the motion judge could not decide whether the claim was barred at the authorization stage. It is true that a court may decide a pure question of law at the authorization stage if the outcome of the proposed class action depends on its doing so, but the question of whether the ABCP concerned is part of the Affected ABCP covered by the release and listed in its Schedule “A” is not a pure question of law. It is not the application of the Order that is being contested but rather its scope, which can be argued later. The scope of the Affected ABCP and the unaffected ABCP under the Order is an issue that could, if necessary, be referred to the Ontario Superior Court of Justice. Caution must be exercised at the authorization stage, and any doubt should weigh in favour of the continuation of the proceedings. Deferring this matter will not result in Management losing any rights given that the action must proceed on the merits on the claim for compensatory damages. Though difficult, a claim for punitive damages based on unlawful and intentional interference under s. 6 of the Charter of human rights and freedoms in relation to the ABCP not covered by the release remains arguable in this context. However, it must be specified that any payment to each member of the group of an amount in punitive damages may be sought solely in relation to Unaffected Claims within the meaning of art. 1 of the Third Amended Plan of Compromise and Arrangement dated January 12, 2009.
Per Moldaver, Côté and Rowe JJ. (dissenting in part): The appeal should be allowed in part. Authorization of the proposed class action against Firm should be denied, and authorization of the proposed class action against Management should be granted, but only in relation to the claim for compensatory damages.
The objectives of facilitating access to justice, modifying harmful behaviour and conserving judicial resources that underlie the class action can be attained only if a rigorous procedure is followed for the authorization of such an action. The class action is a cumbersome procedural vehicle that represents a huge undertaking for all of the participants, including the courts. Authorization is meant to be more than a mere formality. Its purpose is to protect the interests of all those involved in the class action — not only the interests of the representative and the absent members, but also those of the defendants and even of the administration of justice. The authorization stage is what confers full legitimacy on the class action.
Even though the court plays a more active role in the context of a class action, it may not take on the role of party or counsel and reorient the action as presented by the applicant however it likes. The court’s role is not to read between the lines in order to guess the basis for the action whose authorization is being sought, or for the legal syllogism, where no specific allegations are made in relation to a key element of the cause of action. The court hearing the motion for authorization can supplement the allegations using the evidence in the record and can draw inferences and presumptions from them. However, the court is not required to assume the applicant’s legal allegations to be true; it may decide a pure question of law at the authorization stage if the outcome of the proposed class action depends on its doing so. When a judge decides a question of law on which the outcome of a class action depends at the authorization stage, this furthers the objectives of predictability of the law and judicial economy that underlie the system of administration of justice. The judge’s role at the authorization stage is to screen out frivolous or untenable actions, but also to verify that all the conditions of art. 1003 of the former C.C.P. are met. A motion that does not meet all the conditions is not for that reason alone frivolous. Because the court must assume that the alleged facts are true, the allegations must be clear and complete, not vague, general or imprecise. Defects of form can be excused, but substantive defects cannot be. The allegations must be read carefully in order to determine whether the legal syllogism they propose is an arguable one.
At the authorization stage, judges have considerable leeway in assessing whether the conditions set out in art. 1003 of the former C.C.P. are met. If a judge is of the opinion that each condition is met, he or she must authorize the action and has no discretion to decline to do so. An appellate court’s power of intervention is limited, and it must defer to the judge’s assessment of the conditions. The applicable standard for appellate intervention is that of palpable and overriding error.
In this case, the motion judge did not err in stating that Firm could not be contractually liable on the basis of the deposit agreements for the PP and ALT investments because the parties to those agreements were the clients and their respective caisses populaires. The contract that could give rise to Firm’s contractual liability is instead the one that it entered into with clients through its representatives, which was a contract for services whose sole object was the giving of advice. While the giving of advice was the core prestation under the contract, this did not preclude a duty to inform from existing as well. The judge also analyzed the action against Firm as it had been presented, that is, from the standpoint of Firm’s contractual liability for a breach of the duty to inform. This was analyzed in relation to a contractual basis for the action arising from the mandator‑mandatary relationship between Firm’s representatives and the clients. The judge’s assessment of the authorization conditions was entitled to deference on appeal absent a palpable and overriding error.
The common questions requirement set out in art. 1003(a) of the former C.C.P. is not met with respect to the proposed action against Firm. The liability of financial advisers for a breach of the duty to inform and the duty to provide advice is not well suited to a class action because of the highly individual nature of the relationship between a client and an adviser in the context of a contract for investment services. In such a case, the liability analysis would have to be repeated for each individual claim. The case law is consistent in this regard: there can be no common questions in such circumstances. However, if an applicant can show that the breach was systematic in nature, the common questions condition will not be an impediment to authorizing the action. A, on the other hand, has neither alleged nor shown any kind of systematic breach of the advisers’ duty to inform that might be imputed to Firm. By his own admission, he has no idea whether other clients were in the same situation as him. It is therefore the absence of a systematic breach that is fatal to A’s action, not the fact that the action concerns financial advisers.
The duty to inform is more general than the duty to provide advice owed by Firm’s representatives; the duty to inform is, however, a variable obligation shaped by the circumstances of each case, as was affirmed in Bail. This is especially true in cases where the duty to inform is an accessory to a main prestation whose object is the giving of advice. In this case, the obligation to inform arose in the broader context of the provision of a financial adviser’s services, which varies in accordance with several factors, including the length of the relationship and the client’s goals and level of expertise. The obligation of advisers or dealers to know their clients shapes their relationship with them; it is clear that the clients’ specific circumstances are of significant importance. It is therefore not surprising that A does not know whether there are other members in the same situation as him. His situation cannot be extrapolated to the other members of the proposed group. Accordingly, even though a court should not focus on each member’s specific characteristics at the authorization stage of the class action, the fact remains that in this case the elements of fault, causation and injury raised by A on behalf of the group are highly variable. Given the need for such a contextual analysis, there can therefore be no commonality to the question of whether the duty to inform was breached unless it is shown that the breach occurred systematically. The individualized analysis required by the action precludes the possibility of proceeding on a collective basis. A systematic duplication of fact‑finding and legal analysis will be required for each relationship between a financial adviser and a client, which means that the proposed question cannot advance the litigation in a not insignificant manner.
In the case of the proposed action against Management, the Court of Appeal’s intervention was warranted only in part. The Court of Appeal properly authorized the action against Management except in relation to the claim for punitive damages. On this point, the authorization judge was correct to consider the release with respect to ABCP found in the Sanction Order, and the scope of that release, in concluding that the claim against Management for punitive damages in relation to ABCP did not establish an arguable case.
The defences available to a defendant are generally considered at the trial on the merits. However, a court may decide a pure question of law at the authorization stage if the outcome of the proposed class action depends on its doing so. This principle also extends to the interpretation of a release included in a sanction order made by the Ontario Superior Court of Justice, which has full force and effect in Quebec under s. 16 of the CCAA .
The outcome of the part of the proposed action that concerns punitive damages in relation to ABCP depends on how the terms of the release are interpreted. Where evidence is necessary to determine the applicability of a release found in a sanction order, this question should be decided at the trial on the merits. Conversely, where such evidence is not necessary, as in this case, it would be neither logical nor desirable, from the standpoint of judicial economy and of proportionality of proceedings, to defer making a decision on this question of law when the court has an opportunity to decide it at the authorization stage. This is especially true for releases resulting from a compromise or arrangement sanctioned by a court under the CCAA . These releases advance one of the CCAA ’s important objectives, which is to favour restructuring by preventing the risk of litigation. Under ss. 16 and 17 of the CCAA , it is imperative that Quebec courts give effect to CCAA orders regardless of the jurisdiction where the proceedings took place.
In this case, the release presents two impediments that are fatal to A’s claim for punitive damages based on ABCP. The first impediment arises from the limited cause of action authorized for an Excepted Claim: the claim must be based on express fraudulent misrepresentations made to the potential plaintiff by an authorized representative of the potential defendant. However, A’s claim for punitive damages is based not on a misrepresentation, but rather on Management’s fault, which lies in flawed design and management contrary to its obligations and duties to act prudently and diligently and to adhere to sound and prudent management practices. The motion does not allege a cause of action covered by the definition of an Excepted Claim.
The second impediment to the claim for punitive damages relates to the strict time limit for asserting a claim. The nine‑week time limit began to run on the date of delivery of notice by the Monitor, which was essentially the date on which the Sanction Order was made, namely June 5, 2008. A’s motion for authorization to institute a class action was served on September 16, 2011. His claim for punitive damages based on Management’s use of an investment strategy that included ABCP was therefore filed out of time. The release stands in the way of A’s legal syllogism with regard to Management’s fault, and the claim based on ABCP must be dismissed because it does not have the colour of right required by art. 1003(b) of the former C.C.P.
Insofar as it is argued that Management is liable as the designer and manager of the products, the action can be authorized in relation to compensatory damages. By referring to the effects of the 2008 financial crisis in declining to authorize this part of the action, the authorization judge decided the merits of the action. However, this aspect of the action is not devoid of foundation. This was an error that warranted the Court of Appeal’s intervention.
Cases Cited
By Kasirer J.
Applied: L’Oratoire Saint‑Joseph du Mont‑Royal v. J.J., 2019 SCC 35; Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600; Vivendi Canada inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554; referred to: Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725; Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18, [2015] 2 S.C.R. 106; Transport TFI 6 v. Espar inc., 2017 QCCS 6311; Beauchamp v. Procureure générale du Québec, 2017 QCCS 5184; Bramante v. Restaurants McDonald’s du Canada limitée, 2018 QCCS 4852; Imperial Tobacco Canada Ltée v. Conseil québécois sur le tabac et la santé, 2019 QCCA 358, 55 C.C.L.T. (4th) 1; Laflamme c. Prudentiel‑Bache Commodities Canada Ltd., 2000 SCC 26, [2000] 1 S.C.R. 638; Souscripteurs du Lloyd’s v. Alimentations Denis & Mario Guillemette inc., 2012 QCCA 1376; Guilbert v. Vacances sans Frontières Ltée, [1991] R.D.J. 513; AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158; Western Canadian Shopping Centers Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Fisher v. Richardson GMP Ltd., 2019 ABQB 450, 95 Alta. L.R. (6th) 172; Louisméus v. Compagnie d’assurance‑vie Manufacturers (Financière Manuvie), 2017 QCCS 3614; Brunelle v. Banque Toronto Dominion, 2009 QCCS 4605; Paré v. Desjardins Sécurité financière, 2007 QCCS 4566; Farber c. N.N. Life Insurance Co. of Canada, [2002] AZ‑50123096; Comité syndical national de retraite Bâtirente inc. v. Société financière Manuvie, 2011 QCCS 3446; Chandler c. Volkswagen Aktiengesellschaft, 2018 QCCS 2270; Dupuis c. Desjardins Sécurité financière, compagnie d’assurance‑vie, 2015 QCCS 5828; London Life Insurance Company v. Long, 2016 QCCA 1434; ATB Financial v. Metcalfe & Mansfield Alternative Investments II Corp. (2008), 43 C.B.R. (5th) 269, aff’d 2008 ONCA 587, 92 O.R. (3d) 513; Desjardins Sécurité financière, compagnie d’assurance‑vie v. Dupuis, 2018 QCCA 1136; Hy Bloom inc. v. Banque Nationale du Canada, 2010 QCCS 737, [2010] R.J.Q. 912.
By Côté J. (dissenting in part)
ATB Financial v. Metcalfe & Mansfield Alternative Investments II Corp. (2008), 43 C.B.R. (5th) 269, aff’d Metcalfe & Mansfield Alternative Investments II Corp. (Re), 2008 ONCA 587, 92 O.R. (3d) 513; Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600; Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18, [2015] 2 S.C.R. 106; L’Oratoire Saint‑Joseph du Mont‑Royal v. J.J., 2019 SCC 35; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725; Sibiga v. Fido Solutions inc., 2016 QCCA 1299; Charles v. Boiron Canada inc., 2016 QCCA 1716; Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199; Whirlpool Canada v. Gaudette, 2018 QCCA 1206; Martin v. Société Telus Communications, 2010 QCCA 2376; Pharmascience Inc. v. Option Consommateurs, 2005 QCCA 437, [2005] R.J.Q. 1367; Union des consommateurs v. Bell Canada, 2012 QCCA 1287, [2012] R.J.Q. 1243; Labelle v. Agence de développement des réseaux locaux de services de santé et de services sociaux — région de Montréal, 2011 QCCA 334; Toure v. Brault & Martineau inc., 2014 QCCA 1577; Harmegnies v. Toyota Canada inc., 2008 QCCA 380; Regroupement des citoyens contre la pollution v. Alex Couture inc., 2007 QCCA 565, [2007] R.J.Q. 859; Fortier v. Meubles Léon Ltée, 2014 QCCA 195; Option Consommateurs v. Bell Mobilité, 2008 QCCA 2201; Trudel v. Banque Toronto‑Dominion, 2007 QCCA 413; Groupe d’action d’investisseurs dans Biosyntech v. Tsang, 2016 QCCA 1923; Lambert v. Whirlpool Canada, l.p., 2015 QCCA 433; Benabu v. Vidéotron, 2018 QCCS 2207, aff’d 2019 QCCA 2174; Seigneur v. Netflix International, 2018 QCCS 4629, aff’d 2019 QCCA 1671; Raleigh v. Maibec inc., 2016 QCCS 2533; McCracken v. Canadian National Railway Company, 2012 ONCA 445, 111 O.R. (3d) 745; Federal Express Canada Corporation v. Farias, 2019 QCCA 1954; Sofio v. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2015 QCCA 1820; Belmamoun v. Brossard (Ville), 2017 QCCA 102, 68 M.P.L.R. (5th) 46; Durand v. Attorney General of Quebec, 2018 QCCS 2817; Komolafe v. Canada (Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267; A v. Frères du Sacré‑Coeur, 2017 QCCS 5394; Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554; Laflamme v. Prudential‑Bache Commodities Canada Ltd., 2000 SCC 26, [2000] 1 S.C.R. 638; Richter & Associés inc. v. Merrill Lynch Canada inc., 2007 QCCA 124, [2007] R.J.Q. 238; Louisméus v. Compagnie d’assurance‑vie Manufacturers (Financière Manuvie), 2017 QCCS 3614; Brunelle v. Banque Toronto Dominion, 2009 QCCS 4605; Rosso v. Autorité des marchés financiers, 2006 QCCS 5271, [2007] R.J.Q. 61; Paré v. Desjardins Sécurité financière, 2007 QCCS 4566; Farber v. N.N. Life Insurance Co. of Canada, [2002] AZ‑50123096; Rozon v. Les Courageuses, 2020 QCCA 5; Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184; Lallier v. Volkswagen Canada inc., 2007 QCCA 920, [2007] R.J.Q. 1490; TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144; Nortel Networks Corp., Re, 2010 ONSC 1708, 63 C.B.R. (6th) 162; Holley v. Northern Trust Co. Canada, 2014 ONSC 889, 10 C.B.R. (6th) 162, aff’d on other grounds, 2014 ONCA 719, 18 C.B.R. (6th) 162; Sam Lévy & Associés Inc. c. Azco Mining Inc., 2001 SCC 92, [2001] 3 S.C.R. 978; In re Mount Royal Lumber & Flooring Co. (1926), 8 C.B.R. 240; Canadian Red Cross Society (Re) (1998), 165 D.L.R. (4th) 365; Hy Bloom inc. v. Banque Nationale du Canada, 2010 QCCS 737, [2010] R.J.Q. 912; Mull v. National Bank of Canada, 2011 ONCA 488.
Statutes and Regulations Cited
Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3 .
Charter of Human Rights and Freedoms, CQLR, c. C‑12, ss. 6, 49.
Civil Code of Québec, arts. 6, 7, 1375, 1458, 2098, 2803.
Code of Civil Procedure, CQLR, c. C‑25, arts. 4.2, 999d), 1003.
Code of Civil Procedure, CQLR, c. C‑25.01, arts. 18, 575, 577, 578.
Companie’s Creditors Arrangement Act, R.S.C. 1985, c. C‑36, ss. 16 , 17 .
Securities Act, CQLR, c. V‑1.1.
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