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A GENTLE REMINDER THAT
TRADITIONAL CLASS ACTION
PRINCIPLES ARE NOT PASSé?
Christine Carron1
A. INTRODUCTION
The Supreme Court of Canada’s decision in Bisaillon v. Concordia
University2 will certainly spark a plethora of commentary from labour
law specialists. In a narrow decision (four to three, Justices McLachlin,
Bastarache, and Binnie dissenting), the Supreme Court held that disputes
arising over funding of the University’s pension plan were subject to the
exclusive jurisdiction of a labour arbitrator and could not be resolved by
way of a class action proceeding before the Quebec Superior Court. It is
significant that there was no disagreement among the justices as to the
principles that govern class action proceedings, collective agreements,
and the jurisdiction of arbitrators under those agreements. The justices
were divided only with respect to the application of those principles to
the specific facts of the case.
We will leave it to others specializing in labour law to opine on
whether the application of those principles to the facts at issue in the
case will stand the test of time. Instead, this paper will focus on some
of the principles applicable to class actions that were clearly enunciated
and over which there was no disagreement. The reason is two-fold. First,
these principles transcend the arena of labour law and have far-reaching
implications for class actions generally. Second, their enunciation is all
the more important given the paucity of judgments from the Supreme
Court in Quebec class action proceedings. This paucity is due largely to
the fact that judgments authorizing class actions may not be appealed in
Quebec and many defendants prefer to settle when a class action is certi-
fied3 rather than risk an adverse judgment on the merits.
1 Christine Carron is a senior partner with Ogilvy Renault LLP, Montreal.
2 2006 SCC 19 [Bisaillon].
3 The correct terminology for certification in Quebec is “authorization.” The
term “certification” will be used here nonetheless, given that it is the term most
readily understood outside Quebec.
