Trial judge erred in refusing to authorize institution of class action

Civil Practice and Procedure - Class and Representative Proceedings - Representative or class proceedings under class proceedings legislation

Series of sexual assaults were committed by members of Congregation of Holy Cross both on premises of Congregation and that of Saint-Joseph’s Oratory. Representative of victims brought motion for authorization to institute class action against Congregation and Oratory. Trial judge refused to authorize institution of class action, but majority of Quebec Court of Appeal reversed that judgment. Congregation and Oratory appealed before Supreme Court of Canada. Appeals dismissed . Trial judge’s decision was tainted by numerous errors, of fact and of law, in relation to conditions set out in art. 575 of Code of Civil Procedure . First, trial judge’s assertion that application was practically silent regarding involvement on Oratory’s part was incorrect. Second, trial judge erred in assessing commonality of issues, particularly by pointing out that there were differences between the situations of class members . Third, trial judge was essentially of view that no specific, tangible facts were alleged in application in support of claim that Congregation knew about assaults on children allegedly committed by its members. Fourth, trial judge erred in finding that representative did not have competence needed to properly represent class members . It was therefore open to Court of Appeal to intervene and substitute its own assessment for that of trial judge with respect to all conditions. Court of Appeal’s decision to authorize institution of class action against both Congregation and Oratory should be upheld.

L'Oratoire Saint-Joseph du Mont-Royal c. J.J. (2019), 2019 CarswellQue 4223, 2019 CarswellQue 4224, 2019 SCC 35, 2019 CSC 35, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2017), 2017 CarswellQue 8365, 2017 QCCA 1460, Gagnon J.C.A., Marcotte J.C.A., and Healy J.C.A. (C.A. Que.).

Case Law is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please visit


Free newsletter

Our daily newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please complete the form below and click on subscribe for daily newsletters from Law Times.

Recent articles & video

Canadian lawyer helps with World Bank project on women and the law

Access to justice week agenda: Indigenous law, legal aid funds, big data and self-reps

Historical building to become international student hub, bolstered by Toronto lawyer

McMillan marks 90th anniversary of ‘Persons’ case

After 22 years under Les Viner, Torys names new leader

Ryerson Law School wraps first round of applications on Nov. 1

Most Read Articles

New real estate law podcast begins by tackling cannabis regulations

Legal aid investments save governments money all over the world, Canadian researchers find

After 22 years under Les Viner, Torys names new leader

Does solicitor-client privilege protect information shared with a legal app?