In a unanimous decision rendered on August 10, 2016, the Quebec Court of Appeal emphasized the important, even crucial, role of plaintiffs’ lawyers in class actions. The Court clarifies that plaintiffs’ lawyers can play a proactive role in the pursuit of class actions in order to promote consumer protection and access to justice.
Here is the relevant extract from the judgment:
[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”.[33] 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.[34] 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.[35] 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.
