2019 QCCA 383, 2019 QCCA 383

Ikea Canada c. Abicidan 2019 QCCA 383 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028088-193 (500-06-000797-163) MINUTES OF THE HEARING DATE: On March 5, 2019 THE HONOURABLE patrick healy, J.A. PETITIONERS COUNSEL IKEA CANADA LIMITED PARTNERSHIP 1137446 ONTARIO INC. IKEA LIMITED IKEA PROPERTIES LIMITED INTER IKEA SYSTEMS B.V.

Mtre ANNE MERMINOD Mtre alexandra hEbert ( Borden Ladner Gervais s.e.n.c.r.l., s.r.l.) RESPONDENT COUNSEL DAN ABICIDAN Mtre JOEY ZUKRAN ( LPC Avocat inc.) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceedings on December 5, 2018, rectified on December 11, 2018, by the Honourable Chantal Tremblay of the Superior Court, District of Montreal. (Art. 357, 578 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 9:36 Commencement of the hearing. Submissions by Mtre Anne Merminod. 10:00 Submissions by Mtre Joey Zukran. 10:24 Mtre Merminod does not have any rebuttal. BY THE JUDGE: The judgment will be mailed to the Parties. End of the hearing. Judgment – See page 3.

Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] The petitioners seek leave to appeal from a judgment of the Superior Court that authorised a class action. [1] The basis for this motion is that the authorising judge erred in concluding that the facts alleged in the application appear to justify the conclusions sought. [ 2 ] The judgment of the Superior Court authorised a class action on behalf of all consumers who purchased from the petitioners chests of drawers between 1 January 2002 and 28 June 2016. The action was authorised on two grounds: The drawers were affected by a latent or safety defect.

The petitioners did not disclose in a timely manner that the drawers posed serious risks of death or injury if they tipped over. [ 3 ] The specific question presented by the present motion for leave to appeal is whether the judge erred in the conclusion that the application satisfied the requirement of article 575(2) C.C.P. [ 4 ] The petitioners correctly state that leave to appeal from an authorisation will be granted sparingly: Le juge accordera la permission de faire appel lorsque le jugement lui paraîtra comporter à sa face même une erreur déterminante concernant l’interprétation des conditions d’exercice de l’action collective ou l’appréciation des faits relatifs à ces conditions, ou encore, lorsqu’il s’agira d’un cas flagrant d’incompétence de la Cour supérieure. [2] [ 5 ] The present case certainly discloses no flagrant incompetence in the Superior Court. [ 6 ] It also discloses no decisive error by the Superior Court in its consideration of article 575(2) C.C.P.

Indeed, there is no question that the authorising judge correctly stated the applicable principles of law in the consideration of an application to commence a class action. [3] [ 7 ] To obtain authorisation of a class action the applicant must present facts that can plausibly sustain the conclusions sought in the proposed action. This threshold is well established in the jurisprudence and with it there is a complementary proposition that leave to appeal from the authorisation of a class action should be granted only in the clearest of cases.

This policy of restraint is firmly entrenched in the jurisprudence of this court. [4] [ 8 ] The respondent’s application for authorisation, notably in

Part II and the accompanying evidence, sets forth in detail the factual basis of the conclusions sought in the proposed action. That factual basis, of course, is not proof but affirmations that for the purpose of the application to authorise an action must be taken as true. It is apparent that the Superior Court examined the application scrupulously before concluding that the facts alleged appear to justify the proposed action.

As has been repeatedly affirmed in the jurisprudence, the word “appear” in article 575(2) C.C.P . makes plain that an authorisation does not require the applicant to discharge a burden of proof. It requires coherent allegations that could plausibly sustain the conclusions sought. [5] Whether an action can be proved is the question on the merits at trial. [ 9 ] The petitioners in the present motion have not made a case to conclude that the decision to authorise the respondent’s application discloses either a decisive error or flagrant incompetence.

They overstate the standard applicable by the authorising judge under article

575(2) C.C.P. and a fortiori they have not met the standard applicable for granting leave to appeal from the decision to authorise a class action. FOR THESE REASONS, I: [ 10 ] DISMISS the motion for leave to appeal, with costs of justice to the respondent on the motion. PATRICK HEALY , J.A.