2019 SCC 35, 2019 SCC 35

SUPREME COURT OF CANADA Citation : L’Oratoire Saint-Joseph du Mont-Royal v. J.J., 2019 SCC 35, [2019] 2 S.C.R. 831 Appeals Heard: November 7, 2018 Judgment Rendered: June 7, 2019 Docket: 37855

Between: L’Oratoire Saint-Joseph du Mont-Royal Appellant and J.J. Respondent - and - Province canadienne de la Congrégation de Sainte-Croix Intervener And Between: Province canadienne de la Congrégation de Sainte-Croix Appellant and J.J. Respondent - and - L’Oratoire Saint-Joseph du Mont-Royal Intervener Official English Translation Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. Reasons for Judgment: (paras. 1 to 83) Brown J. (Abella, Moldaver, Karakatsanis and Martin JJ. concurring) Reasons Dissenting in Part: (paras. 84 to 189) Gascon J. (Wagner C.J. and Rowe J. concurring) Dissenting Reasons: (paras. 190 to 287) Côté J.

L’Oratoire Saint-Joseph du Mont-Royal v. J.J., 2019 SCC 35, [2019] 2 S.C.R. 831 L’Oratoire Saint-Joseph du Mont-Royal Appellant v. J.J. Respondent and Province canadienne de la Congrégation de Sainte-Croix Intervener - and - Province canadienne de la Congrégation de Sainte-Croix Appellant v. J.J. Respondent and L’Oratoire Saint-Joseph du Mont-Royal Intervener Indexed as: L’Oratoire Saint-Joseph du Mont-Royal v. J.J. 2019 SCC 35 File No.: 37855. 2018: November 7; 2019: June 7.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for quebec Civil procedure — Class action — Authorization to institute class action — Conditions for authorization of action — Application for authorization to institute class action for damages for injuries caused by sexual assaults allegedly committed by members of religious community — Superior Court dismissing application for authorization — Court of Appeal reversing judgment and authorizing class action — Whether Court of Appeal’s intervention in Superior Court’s decision was warranted — Whether Court of Appeal’s decision authorizing institution of class action is tainted by error justifying review — Code of Civil Procedure, CQLR, c.

C-25.01, art. 575 .

Prescription — Civil liability — Applicable period for instituting action for damages for bodily injury resulting from act which could constitute criminal offence — Sexual assaults being alleged against members, since deceased, of religious congregation — Application for authorization to institute class action being filed against congregation and against religious institution whose board of directors is composed of members of that congregation on basis of their own fault and of act of another person — Whether three-year period provided for in art. 2926.1 para. 2 of Civil Code for instituting action in case in which author of act has died results in forfeiture of remedy — Whether that period begins running at time of death of author of act or on date victim becomes aware that injury suffered is attributable to that act — Whether that period applies to every action instituted in relation to that act — Civil Code of Québec, art. 2926.1 .

J alleged that he had been sexually abused by two members, since deceased, of the religious community known as the Congregation of Holy Cross when he was attending Notre-Dame-des-Neiges elementary school and when he was an altar boy at St. Joseph’s Oratory of Mount Royal. He applied for authorization to institute a class action on behalf of victims of sexual assaults that were alleged to have been committed in various institutions in Quebec by brothers and fathers who were members of that religious community.

As defendants, J designated Province canadienne de la Congrégation de Sainte-Croix (“Congregation”) and Oratoire Saint-Joseph du Mont-Royal (“Oratory”). The Congregation contested the application for authorization on the basis that it could not be held liable for acts that were for the most part alleged to have been committed before it was incorporated, and the Oratory did so on the basis that it had no connection with the religious community known as the Congregation of Holy Cross.

In addition, both the Congregation and the Oratory were of the view that J’s personal action was irreparably forfeit as a result of art. 2926.1 para. 2 of the Civil Code of Québec (“ C.C.Q. ”). The Superior Court found that none of the conditions for authorization set out in art. 575 of the Code of Civil Procedure (“ C.C.P. ”) were met and refused to authorize the institution of the class action. The Court of Appeal reversed that judgment and authorized the institution of the class action against the Congregation and the Oratory.

Held (Wagner C.J. and Gascon and Rowe JJ. dissenting in part and Côté J. dissenting): The appeals should be dismissed. Per Abella, Moldaver, Karakatsanis, Brown and Martin JJ.: The Court of Appeal’s decision to authorize the institution of the class action against both the Congregation and the Oratory is not tainted by an error that justifies a review, and there is nothing that would justify the Court in reversing that decision.

The judgment in which the Superior Court denied authorization to institute a class action against both the Congregation and the Oratory is tainted by numerous errors, of fact and of law, in relation to all the conditions of art. 575 C.C.P. It was therefore open to the Court of Appeal to intervene and to substitute its own assessment with regard to those conditions for that of the Superior Court judge. Finally, Gascon J.’s analysis on the subject of art. 2926.1 C.C.Q. is agreed with: J’s personal action is neither forfeit nor prescribed. The second paragraph of that

article does not create a term for forfeiture ( délai de déchéance ).

Article 571 para. 1 C.C.P. defines the class action as a procedural means enabling a person who is a member of a class of persons to sue on behalf of all the members of the class and to represent the class.

Article 574 para. 1 C.C.P. provides that prior authorization of a court is required for a person to institute a class action. At the authorization stage, the court plays a screening role and must simply ensure that the applicant meets the four conditions of art. 575 C.C.P. If the conditions are met, the class action must be authorized. The court will consider the merits of the case later. This means that the application judge is ruling on a purely procedural question. The Court has given a broad

interpretation and application to the conditions of art. 575 C.C.P. The Court of Appeal’s power to intervene is limited when it hears an appeal from a decision on an application for authorization to institute a

class action, and it must show deference to the application judge’s decision. The Court of Appeal will therefore intervene only if the application judge erred in law or if the judge’s assessment with respect to the conditions of art. 575 C.C.P. is clearly wrong . If the application judge has made such an error with respect to any of the four conditions, the Court of Appeal can substitute its own assessment, but only for that condition and not for the others. Moreover, the application judge’s role is limited at the authorization stage.

An application judge who oversteps the bounds of his or her screening role and imposes an excessive evidentiary threshold requirement on the applicant or considers the merits of the case makes an error of law warranting the Court of Appeal’s intervention. In this case, given the numerous errors made by the Superior Court judge with respect to all the conditions of art. 575 C.C.P. , the Court of Appeal was right to substitute its own assessment for that of the application judge with respect to all those conditions.

The Superior Court judge had erred in law in considering the condition of commonality of issues set out in art. 575(1) by emphasizing the differences between the class members rather than acknowledging that there was at least one common question stemming from the fact that all the class members were alleged to be victims of members of the Congregation.

On the condition of sufficiency of the alleged facts set out in art. 575(2), when the judge found that no specific, tangible facts were alleged in the application and discounted certain of the exhibits in the record, he clearly overstepped the bounds of his screening role by considering the merits of the case. As for the condition of J’s status as representative plaintiff set out in art. 575(4), the judge clearly erred in concluding that the leading role played by J’s lawyers in bringing the application for authorization was inconsistent with his status as representative plaintiff.

The judge also erred in faulting J for not personally having taken any steps to verify the institutions where assaults were alleged to have taken place and the number of people in the proposed class. What is more, this error influenced the judge’s analysis with respect to other conditions such as that of the composition of the class set out in art. 575(3) .

Next, the Court of Appeal’s decision to authorize the class action against both the Congregation and the Oratory is not tainted by an error that justifies a review with respect to the conditions of commonality of issues (art. 575(1)) and sufficiency of the alleged facts (art. 575(2)), the only ones the Oratory contests in the Court. As for the Congregation, there is agreement with Gascon J., who dismisses the Congregation’s appeal.

Article 575(1) C.C.P. provides that a class action cannot be authorized unless the court finds that “the claims of the members of the class raise identical, similar or related issues of law or fact”. This is the condition of commonality of issues. There is no requirement of a fundamental identity of the individual claims of the proposed class’s members: a single identical, similar or related question of law would be sufficient to meet this condition provided that it is significant enough to affect the outcome of the class action.

The fact that the situations of all members of the class are not perfectly identical does not mean that the class does not exist or is not uniform. Nor is it necessary for each member of the class to have a personal cause of action against each of the defendants. This condition is met in this case: there are similar or related issues. J’s personal cause of action against the Oratory is primarily based on it being directly liable for assaults allegedly committed at the Oratory.

All the common issues identified by J actually related to the question whether the Oratory and the Congregation were negligent toward sexual assault victims. J alleges, among other things, that the Oratory knowingly and consciously chose to ignore the issue of sexual abuse by members of the Congregation at the Oratory. For a legal person such as the Oratory, to be aware of sexual abuse can mean only one thing: the Oratory’s directors were aware of the abuse.

Given that the Oratory’s affairs were managed in whole or in part by the Congregation’s members, the allegations relating to direct liability of the Oratory are actually allegations relating to faults of members of the Congregation acting as directors of the Oratory. The question of faults allegedly committed by the Congregation’s members is undeniably one that is common to all the members of the class.

This means that any finding of direct liability of the Oratory will advance the action of each member of the class, particularly in that it will tend to establish the existence of systemic negligence within the Congregation in relation to the alleged sexual abuse of children by its members. Article 575(2) C.C.P. provides that the facts alleged in the application must “appear to justify” the conclusions being sought. This is the condition of sufficiency of the alleged facts.

At the authorization stage, the role of the judge is to screen out only those applications which are frivolous, clearly unfounded or untenable. The applicant’s burden is to establish an arguable case in light of the facts and the applicable law. This is a low threshold. The legal threshold requirement is a simple burden of demonstration that the proposed legal syllogism is tenable: the applicant must establish a good colour of right. The evidentiary threshold requirement falls comfortably below the standard of proof on a balance of probabilities.

The applicant is not required to show that the claim has a sufficient basis in fact. Furthermore, at the authorization stage, the facts alleged in the application are assumed to be true, so long as the allegations of fact are sufficiently precise. Where the allegations are not sufficiently precise, they must absolutely be accompanied by some evidence in order to form an arguable case.

It is in fact possible for the evidence submitted in support of the application to contain concrete, specific or tangible facts that could be used to establish an arguable case even though the allegations in the application seem to be vague, general or imprecise. A court that must determine whether an applicant has shown an arguable case must consider the allegations in the application in light of all the evidence. In this case, J has met the evidentiary and the legal threshold requirements under art. 575(2) C.C.P.

The seeming vagueness, generality or imprecision of J’s allegations in the application must be assessed in light of the context of the application and the evidence presented in support of it. That context involves incidents that occurred when J was a child. The fact that nothing was reported at the time of the events explains why no concrete, specific or tangible allegations of fact are made in the application itself. What is more, J’s seemingly general allegations of fault against the Oratory are not being made in the abstract, but are supported by some evidence.

His personal cause of action is founded on the Oratory’s direct liability for assaults that are alleged to have been committed at that place by a member of the Congregation whom the Oratory had made one of the essential players in one of the central activities for which the Oratory was responsible. In addition, the Oratory’s directors, who themselves were all members of the Congregation, knew or ought to have known about the assaults that are alleged to have been committed at the Oratory by members of the Congregation.

The Congregation is hidden behind the Oratory, and this is definitely something that may be taken into consideration in law in order to impute direct liability to the Oratory. In light of some evidence that has been produced, an argument that the Oratory may have breached its duty to protect its altar boys is not frivolous, clearly unfounded or untenable. The allegations made against the Oratory and those made against the Congregation in J’s application and the exhibits filed in support of it simply cannot be distinguished in any way that would be legally relevant.

Lastly, the fact that other defendants could possibly have been sued but were not cannot release the Oratory from its liability for assaults allegedly committed at the Oratory. Per Wagner C.J. and Gascon and Rowe JJ. (dissenting in part): J’s remedy is neither forfeit nor clearly prescribed under art. 2926.1 C.C.Q. The class action against Province canadienne de la Congrégation de Sainte-Croix (“Congregation”) should not be dismissed at the stage of the application for authorization. The application for authorization against Oratoire Saint-Joseph du Mont-Royal (“Oratory”) should be dismissed, however.

The first paragraph of art. 2926.1 C.C.Q . provides that an action for damages for bodily injury resulting from

an act which could constitute a criminal offence is prescribed by 10 years. That period becomes 30 years if the injury results from, among others, sexual assault. One of these periods begins running on the date the victim becomes aware that his or her injury is attributable to such

an act. The second paragraph provides that if the victim or the author of the act dies, “the prescriptive period . . . is reduced to three years . . . from the date of death”, provided that the period has not already expired. This paragraph does not create a term for forfeiture — art. 2926.1 C.C.Q. is in its entirety an integral part of the scheme of prescription, and the second paragraph is no exception to that. In Quebec civil law, the forfeiture of a remedy cannot be presumed. Indeed, art. 2878 C.C.Q. states that forfeiture results only where expressly provided for in a text.

And where there is a doubt or ambiguity, a specified period must be interpreted as a prescriptive period. Neither the words of the second paragraph of art. 2926.1 C.C.Q. nor its context or its underlying objectives lead to the conclusion that there was a clear, precise and unambiguous intention to adopt a term for forfeiture that will apply should the author of the act die. The provision contains no express and unequivocal language relating to forfeiture, and the words of the second paragraph refer to the prescriptive periods in question in the first paragraph. The proposition that a three-year

period is intrinsically short is erroneous. By reducing the period in question to three years, the legislature has simply restored the general law prescriptive period that applies under art. 2925 C.C.Q. The explanatory notes for the Act to amend the Crime Victims Compensation Act, the Act to promote good citizenship and certain provisions of the Civil Code concerning prescription (“amending Act”) — by which art. 2926.1 C.C.Q. was enacted — and the consequential amendments to, among others, art. 2905 C.C.Q. — pursuant to which prescription no longer runs against a minor for

an act which could constitute a criminal offence — confirm this

interpretation. Lastly, the addition of art. 2926.1 at a specific place within the framework of the C.C.Q. , that is, in Book Eight on prescription, is a further indication of the legislature’s intention regarding the meaning to be given to this particular provision. Moreover, the adoption of a term for forfeiture would clearly frustrate the amending Act’s objective of facilitating access to civil justice and would have consequences that are illogical or even absurd.

A victim whose assailant died could no longer submit that it had been impossible for him or her to act, given that such a term cannot be suspended or interrupted. The victim would then have a maximum of three years from the date the author of the act died to institute an action, even if the injury had not yet appeared. The effect of such an

interpretation is that an action for damages for bodily injury for an act to which art. 2926.1 C.C.Q. applies would be subject to stricter rules than an action for damages for an injury that is not attributable to

an act which could constitute a criminal offence. Finally, under the amending Act’s transitional provisions, the periods — and their starting point — provided for in art. 2926.1 are of immediate application because they are declaratory. The effect of the adoption of a term for forfeiture would be that if a victim’s assailant died before the amending Act was enacted, his or her right of action would be retroactively forfeit three years after the assailant’s death, even if the victim’s action was not prescribed before that Act came into force.

Under art. 2926.1 para. 2, the death of the victim or the author of the act merely changes the length of the period, not its starting point, which continues to be when the victim becomes aware of the connection between the assault and the injury. It is clear from the record of the legislative debate that this second paragraph does not introduce a new period: the death simply changes the period provided for in the first paragraph by reducing it to three years.

By providing that the second paragraph applies if one of the principal protagonists dies, the legislature ensured a proper balancing of the interests affected by the lengthy prescriptive period, such as uncertainty with respect to the property of the succession and the integrity of the adversarial process, without diminishing the objective of facilitating access to justice for victims. Furthermore, the amending Act’s transitional provisions state that the provisions concerning the starting point of the prescriptive periods provided for in art. 2926.1 C.C.Q. are declaratory.

Thus, the effect of finding that the death of one of the principal protagonists is a distinct starting point would be that the right of action of a victim whose assailant died more than three years before the amending Act came into force would be extinguished retroactively. The reduction of the period provided for in art. 2926.1 para. 2 applies only in relation to the succession of the victim or to that of the author of the act.

Under the general rules of civil liability, the victim’s remedy against a third party who is liable for his or her own fault or for the act or omission of another person is not dependent on the direct remedy against the author of the act. Prescription is determined for each action individually. Any other conclusion would clearly frustrate the purpose of facilitating access to civil justice for assault victims and would allow parties who may be at fault to go on with their lives without liability.

In this case, the starting point of the applicable period was the time when J became aware of the connection between the assaults and his injury, not the date of death of his alleged assailants. Exactly when he became aware of the connection and how this might have affected the applicable prescriptive period will be determined at the trial on the merits. At the authorization stage, despite the fact that the alleged acts occurred more than 30 years ago, J’s allegation that he did not become aware of that connection until 2011 must be assumed to be true.

The class action against the Congregation should not be dismissed at the stage of the application for authorization. At this stage, the court’s role is to screen applications in order to filter out any that are frivolous and to ensure that parties are not being forced to defend against untenable claims. The evidentiary threshold that must be met in order to determine whether each of the conditions set out in art. 575 C.C.P. is satisfied is a low one at this preliminary stage . It will suffice for the applicant to show an arguable case in light of the facts and the applicable law.

For an arguable case to be established, however, more than vague, general or imprecise allegations are required. The allegations and the exhibits filed in support of them, when considered as a whole, establish an arguable case against the Congregation. Although the Congregation was constituted only in 2008, the exhibits in the record show that a number of the Congregation’s establishments have used the appellation “Sainte-Croix” in one form or another over the years.

Moreover, the Congregation has not argued that the alleged assailants might have been part of a religious community other than the one it represents. And in 2009, the Congregation had agreed to take up the interest of other entities in the context of a settlement flowing from another application for authorization in relation to alleged sexual abuse by members of the Congregation. On that occasion, the Superior Court had found that all the conditions for authorization were satisfied and had authorized the institution of the class action for the purpose of approving the settlement.

In this case, it will be for the parties to address the Congregation’s corporate structure at the trial on the merits and to make whatever complete submissions they consider appropriate at that time. The colour of right condition of art. 575(2) C.C.P. is satisfied: the application for authorization against the Congregation is neither untenable nor frivolous. However, the allegations in the application and the exhibits filed in support of them do not support a cause of action in liability against the Oratory, an entity distinct from the Congregation.

In this case, no facts, either alleged or found in the exhibits, support a rigorous deductive reasoning that involves more than mere assumptions and speculations. Regarding the direct fault alleged against the Oratory, the allegations consist of conclusions of fact without any factual underpinning, of legal arguments, or of opinions. Unlike in the Congregation’s case, no other allegation in the application and none of the exhibits filed in support of the allegations lend credence to these general allegations, which have no factual underpinning.

There is nothing that illustrates how the Oratory’s acts or omissions allowed the assaults to occur or facilitated them or that supports the allegation that a representative or employee of the Oratory tried to conceal the assaults.

Nor does the argument that any allegation made or evidence adduced against the Congregation can also apply to the Oratory because the Congregation, through some of its members, is alleged to have helped found the Oratory establish the necessary legal syllogism in the absence of specific and tangible allegations of negligence on the Oratory’s part or of the existence of a relationship of subordination between it and the members of that religious community.

As for whether the Oratory is liable, as principal, it was necessary to allege, at a minimum, that members of the Congregation were subordinates of the Oratory who had committed faults in the performance of their duties. There is quite simply no factual support for such a determination either in the allegations or in the exhibits filed in support of them. Simply identifying a physical place belonging to the Oratory as the place at which some of the alleged assaults occurred cannot lead to the conclusion that the Oratory was the principal in relation to the member of the Congregation who allegedly assaulted J.

Because the colour of right condition of art. 575(2) C.C.P. is not met, the action against the Oratory must be dismissed. It is not necessary to consider the condition of commonality of issues ( art. 575(1) C.C.P. ). Per Côté J. (dissenting): The appeal of Province canadienne de la Congrégation de Sainte-Croix (“Province canadienne”) should be allowed because the Court of Appeal did not show that the application judge’s assessment of the condition for authorization set out in art. 575(2) C.C.P. was clearly wrong.

The appeal of Oratoire Saint-Joseph du Mont-Royal (“Oratory”) should also be allowed for the reasons given by Gascon J. The application judge’s decision dismissing the application for authorization to institute a class action should therefore be restored in relation to both Province canadienne and the Oratory. However, for different reasons than those given by Gascon J., J’s right of action is neither forfeited nor prescribed under the second paragraph of art. 2926.1 C.C.Q.

An application for authorization to institute a class action will be granted if it meets four cumulative conditions set out in art. 575 C.C.P. This authorization mechanism must not be reduced to a mere formality. In particular, under art. 575(2) C.C.P. , the judge must ensure that “the facts alleged

appear to justify the conclusions sought”. The burden on the applicant is to show an arguable case, which is equivalent to a good colour of right, and not only to establish that the application is not frivolous or clearly unfounded. The application judge must be able to infer the proposed legal syllogism from the facts alleged in the application. The legal syllogism must be clear, complete and rigorous. Vague, general or imprecise allegations — as well as mere statements of a legal nature, opinions or assumptions — cannot suffice to establish an arguable case.

No evidence can cure the absence of specific factual allegations regarding an essential element of the cause of action. The application judge should confine himself or herself to the facts that are alleged, without trying to complete them. In the case at bar, it was certainly open to the application judge to conclude that J had not met his burden of demonstrating an arguable case. The facts alleged disclose no cause of action — no legal relationship — between him and Province canadienne.

The uncontested evidence adduced by J himself clearly establishes that Province canadienne, as a distinct legal person, did not exist at the time of the alleged events. It was constituted on January 1, 2008 under the Religious Corporations Act and has not been amalgamated or continued. J’s two alleged aggressors died in 2001 and 2004 and thus were never members of Province canadienne.

Even if the facts are assumed to be true and the evidence adduced is considered, the application for authorization does not indicate the basis on which Province canadienne could be liable — whether for its own fault or for that of another person — for acts or omissions that occurred before it was constituted. The legal syllogism is flawed or clearly incomplete, if not absent. The fact that Province canadienne has a religious mission does not allow its juridical personality to be disregarded.

Being one of the legal vehicles of a religious community whose history dates back to well before 2008 cannot make it liable per se for acts and omissions committed before it was constituted by members of that community or by other legal entities that may have been connected to that community. The fact that two corporations may be constituted by the same members or by the same religious community is not in itself of any legal consequence.

In the instant case, the application for authorization contains no factual allegations relating to fraud, abuse of right or contravention of public order that could possibly justify disregarding or ignoring Province canadienne’s juridical personality under art. 317 C.C.Q. Moreover, even if such allegations had been made, it is by no means clear that an arguable case could have been established on that basis given that Province canadienne did not exist at the relevant time. It therefore could not have taken

part in the alleged acts and omissions and, for this reason, be liable for them. A class action cannot be authorized in relation to a defendant solely on the basis of its close connections with other entities. In addition, in the case at bar, the application for authorization says practically nothing about the corporate identity of Province canadienne and the Oratory and nothing at all about their possible connections with other entities. The fact that Province canadienne took up the defence of other entities for their actions in another case relating to sexual aggressions has little legal significance.

The settlement reached in that other case was clearly entered into without prejudice and without any admission, and it suggests that, if faults were committed, entities other than Province canadienne are liable for them. The Superior Court authorized the class action against Province canadienne in that other case solely for the purposes of the settlement; its decision rested on a laconic analysis carried out essentially as a matter of form, which could not be binding on the application judge in the present case.

Province canadienne and the Oratory have not shown that the period established by the second paragraph of art. 2926.1 C.C.Q. is a term for forfeiture. Prescription is based first and foremost on the idea of sanctioning failure to act by a person who has a right to exercise, which explains why there are mechanisms like suspension and interruption that mitigate the rigours of prescription. By contrast, forfeiture is meant to quickly put an end, for all purposes, to the possibility of performing a particular act.

Forfeiture is exceptional in nature: it automatically entails the loss of a right even though its holder has done nothing wrong. The legislature has therefore enacted an interpretative provision, the second paragraph of art. 2878 C.C.Q ., which states that “forfeiture is never presumed; it results only where expressly provided for in a text”. Although no set formula is necessary, a term for forfeiture can be found to exist only where the legislature has spoken in a precise, clear and unambiguous manner.

The second paragraph of art. 2926.1 states that the shortened period of three years “runs from the date of death”. The wording is clear and explicit: the death of the victim or the author of the act marks a starting point that differs from the one provided for in the first paragraph. The first paragraph codifies the judge-made rule that prescription does not run against a victim of sexual aggression who is not aware of the connection between that act and the injury suffered. It provides that an action “is prescribed . . . from the date the victim becomes aware” of that connection.

It cannot be found from the wording of the second paragraph that the death simply has the effect of shortening the 10- or 30-year period provided for in the first paragraph. The expressions “from the date” in the first paragraph and “from the date of death” in the second paragraph are equivalent, and they both indicate the starting point for prescription. Words used by the legislature are presumed to have the same meaning throughout the same statute . This

interpretation is also the most coherent . If the death was not a new starting point but simply had the effect of shortening the period, an action by the victim’s succession might be imprescriptible in some circumstances. The solution the legislature seems to have chosen is a three-year period that runs from the date of death of the victim or the author of the act, regardless of whether, before that date, the victim made the connection between the act and the injury suffered.

The fact that the three-year period under the second paragraph is linked to a specific, objective fact that is fixed in time, namely the death of the victim or the author of the act, provides a strong indication of forfeiture. The link to the death suggests that the period in question, unlike a prescriptive period, is not intended to sanction the victim’s negligence. However, it is difficult to argue that the wording of the second paragraph makes no reference to prescription. The French version refers to the “ délai applicable ”, which is the 10- or 30-year prescriptive period under the first paragraph.

The English version is even more explicit: “the prescriptive period, if not already expired, is reduced to three years”. Therefore, it cannot be concluded from the wording of the provision that the legislature expressed an intention to create a term for forfeiture, rather than a prescriptive period, in a sufficiently precise, clear and unambiguous manner.

Absent an express provision to the contrary, the general provisions dealing with the suspension of prescription — including the provision on impossibility in fact to act (art. 2904 C.C.Q. ) — apply to the period provided for in the second paragraph of art. 2926.1 C.C.Q ., subject to the following exception. Given that the second paragraph of art. 2926.1 C.C.Q. sets a different starting point for prescription, separate from the one established by the first paragraph, lack of awareness of the connection between the alleged act and the injury suffered cannot suspend the period provided for in the second paragraph.

The opposite

interpretation would frustrate the legislature’s intention that the period run from the date of death, and no longer from the date the victim becomes aware of the connection. The second paragraph of art. 2926.1 C.C.Q. applies to all actions for damages for bodily injury resulting from sexual aggression. The wording of the provision draws no distinction between the author of the act and third parties who might also be liable for their own fault or for the act or omission of another person.

The purpose of this provision is to address the legislature’s concerns about the preservation of evidence and, more broadly, the integrity of the adversarial process. The starting point under the second paragraph, the date of death, does not have retroactive effect, regardless of whether the period is a term for forfeiture or a prescriptive period. The introduction of a new period does not retroactively extinguish an existing right of action unless such an intention is clearly expressed. This is not the case here.

First of all, the amending Act specifically mentions only prescription and contains no transitional provision that could apply to the starting point of a term for forfeiture. Second, if the second paragraph of art. 2926.1 C.C.Q. simply provides for a prescriptive period, s. 13 of the amending Act does not give it any retroactive effect, because the new starting point set on the date of death is not declaratory in nature. The legislature stated in s. 13 that the provisions concerning the starting point for prescription are “declaratory”.

A declaratory provision has retroactive effect insofar as it interprets existing law in the way that a judicial decision would. The starting point under the second paragraph, unlike the first paragraph, can hardly be characterized as declaratory given that it is entirely new law that is not meant to settle or clarify existing law. Therefore, the legislature did not express an intention to give it retroactive effect. If there is any doubt in this regard, the

interpretation that limits the scope of provisions that are explicitly retroactive or declaratory is to be preferred. Accordingly, whatever the nature of the period under the second paragraph of art. 2926.1 C.C.Q. , it would not have begun to run, in relation to existing juridical situations, before the coming into force of the amending Act. As a result, the introduction of a new

starting point set on the date of death would not affect J’s right of action in the instant case. Cases Cited By Brown J. Applied: Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Infineon Technologies AG v. Option consommateurs, 2013SCC 59, [2013] 3 S.C.R. 600; referred to: 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; Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65; Bank of Montreal v. Marcotte, 2014 SCC 55,[2014] 2 S.C.R. 725; Tremaine v. A.H.

Robins Canada Inc., (QC CA), [1990] R.D.J. 500; Comité d’environnement de La Baie Inc. v.Société d’électrolyse et de chimie Alcan Ltée, (QC CA), [1990] R.J.Q. 655; Harmegnies v. Toyota Canada inc., 2008 QCCA 380;Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; Pharmascience inc. v. Option Consommateurs, 2005 QCCA 437; Trottier v.Canadian Malartic Mine, 2018 QCCA 1075; Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184; Griffith v. Winter, 2002 BCSC 1219, 23C.P.C. (5th) 336, aff’d 2003 BCCA 367, 15 B.C.L.R. (4th) 390; Sofio v.

Organisme canadien de réglementation du commerce des valeurs mobilières(OCRCVM), 2015 QCCA 1820; Sibiga v. Fido Solutions inc., 2016 QCCA 1299; Charles v. Boiron Canada inc., 2016 QCCA 1716; Belmamoun v.Brossard (Ville), 2017 QCCA 102, 68 M.P.L.R. (5th) 46; Masella v. TD Bank Financial Group, 2016 QCCA 24; Del Guidice v. Honda Canada inc., 2007QCCA 922, [2007] R.J.Q. 1496; Collectif de défense des droits de la Montérégie (CDDM) v. Centre hospitalier régional du Suroît du Centre de santé et deservices sociaux du Suroît, 2011 QCCA 826; Cornellier v.

Province canadienne de la Congrégation de Ste-Croix, 2011 QCCS 6670; John Doe v. Bennett,2004 SCC 17, [2004] 1 S.C.R. 436; Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534; Lambert (Gestion Peggy) v. Écolait ltée, 2016 QCCA659; Baulne v. Bélanger, 2016 QCCS 5387; Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA199; Cornellier v. Province canadienne de la Congrégation de Ste-Croix, 2013 QCCS 3385; Sibiga v. Fido Solutions inc., 2014 QCCS 3235; Charles v.Boiron Canada inc., 2015 QCCS 312; Lévesque v. Vidéotron, s.e.n.c., 2015 QCCA 205; Martel v.

Kia Canada inc., 2015 QCCA 1033; Union desconsommateurs v. Air Canada, 2014 QCCA 523; A v. Frères du Sacré-Cœur, 2017 QCCS 34; Brown v. B2B Trust, 2012 QCCA 900; Carrier v. Québec ult& Martineau inc., 2014 QCCA 1577; Lambert v. Whirlpool Canada, l.p., 2015 QCCA 433; Groupe d’action d’investisseurs dans Biosyntech v. Tsang,2016 QCCA 1923; Comité régional des usagers des transports en commun de Québec v. Quebec Urban Community Transit Commission,(SCC), [1981] 1 S.C.R. 424; Nadon v.

Anjou (Ville), (QC CA), [1994] R.J.Q. 1823; Oubliés du viaduc de la Montée Monette v.Consultants SM inc., 2015 QCCS 3308; Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18, [2015] 2 S.C.R. 106; Asselin v. Desjardins Cabinet scontre la pollution v. Alex Couture inc., 2007 QCCA 565, [2007] R.J.Q. 859; Halvorson v. British Columbia (Medical Services Commission), 2010 BCCA267, 4 B.C.L.R. (5th) 292; Markson v. MBNA Canada Bank, 2007 ONCA 334, 85 O.R. (3d) 321; Option Consommateurs v. Bell Mobilité, 2008 QCCA2201; Whirlpool Canada v.

Gaudette, 2018 QCCA 1206; Centre de la communauté sourde du Montréal métropolitain v. Institut Raymond-Dewar, 2012QCCS 1146; St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392; Option Consommateurs v. Merck & Co. inc., 2013 QCCA 57;Option Consommateurs v. Fédération des caisses Desjardins du Québec, 2010 QCCA 1416; Bouchard v. Agropur Coopérative, 2006 QCCA 1342, [2006]R.J.Q. 2349; Option Consommateurs v. Novopharm Ltd., 2008 QCCA 949, [2008] R.J.Q. 1350. By Gascon J. (dissenting in part) 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; M. (K.) v. M. (H.), (SCC), [1992] 3 S.C.R. 6; Roussel v. Créations Marcel Therrien inc., 2011 QCCA 496, [2011]R.J.Q. 555; Global Credit & Collection Inc. v. Rolland, 2011 QCCA 2278, [2012] R.J.Q. 12; Équipement Industriel Robert Inc. v. 9061-2110 Québec Inc.,Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306; Dell Computer Corp. v. Union desconsommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801; Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, [2013] 3 S.C.R. 125;Western Minerals Ltd. v.

Gaumont, (SCC), [1953] 1 S.C.R. 345; Gravel v. City of St-Léonard, (SCC), [1978] 1 S.C.R. 660;Chambre des notaires du Québec v. Haltrecht, (QC CA), [1992] R.J.Q. 947; Kent v. The King, (SCC), [1924] S.C.R.388; Banque de Nouvelle-Écosse v. Cohen, Québec (Commission de la construction) v. Gastier inc., Cornellier v.Province canadienne de la Congrégation de Ste-Croix, 2011 QCCS 6670; Cornellier v. Province canadienne de la Congrégation de Ste-Croix, 2013QCCS 3385; A v. Frères du Sacré-Cœur, 2017 QCCS 5394; Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65; Asselin v.

Desjardins Cabinetde services financiers inc., 2017 QCCA 1673. By Côté J. (dissenting) Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549;Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600; Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65;Sofio v. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2015 QCCA 1820; Bouchard v. Agropur Coopérative,2006 QCCA 1342, [2006] R.J.Q. 2349; Option Consommateurs v.

Fédération des caisses Desjardins du Québec, 2010 QCCA 1416; Bou Malhab v.Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Comité régional des usagers des transports en commun de Québec v. Quebec UrbanCommunity Transit Commission, (SCC), [1981] 1 S.C.R. 424; Pharmascience inc. v. Option Consommateurs, 2005 QCCA 437, [2005]R.J.Q. 1367; Option Consommateurs v. Bell Mobilité, 2008 QCCA 2201; Union des consommateurs v. Bell Canada, 2012 QCCA 1287, [2012] R.J.Q.1243; A v. Frères du Sacré-Cœur, 2017 QCCS 5394; Trudel v. Banque Toronto-Dominion, 2007 QCCA 413; Toure v.

Brault & Martineau inc., 2014QCCA 1577; Lambert v. Whirlpool Canada, l.p., 2015 QCCA 433; Groupe d’action d’investisseurs dans Biosyntech v. Tsang, 2016 QCCA 1923; Fortierv. Meubles Léon ltée, 2014 QCCA 195; Sibiga v. Fido Solutions inc., 2016 QCCA 1299; Charles v. Boiron Canada inc., 2016 QCCA 1716; Asselin v.Desjardins Cabinet de services financiers inc., 2017 QCCA 1673; Domaine de l’Orée des bois La Plaine inc. v. Garon, 2012 QCCA 269; Lanoue v.Brasserie Labatt ltée, Coutu v. Québec (Commission des droits de la personne), Deraspe v.

Zinc électrolytique duCanada ltée, 2014 QCCS 1182, aff’d 2014 QCCA 2266, leave to appeal refused, [2015] 2 S.C.R. vi; Labranche v. Énergie éolienne des Moulins, s.e.c.,2016 QCCS 1479, application for leave to appeal dismissed, 2016 QCCA 1879; Option Consommateurs v. LG Chem Ltd., 2017 QCCS 3569; Cornellier v.Province canadienne de la Congrégation de Ste-Croix, 2013 QCCS 3385; Cornellier v. Province canadienne de la Congrégation de Ste-Croix, 2011QCCS 6670; Alexandre v. Dufour, (QC CA), [2005] R.J.Q. 1; Pierre-Louis v. Québec (Ville de), 2008 QCCA 1687, [2008] R.J.Q.2063; Andreou v.

Agence du revenu du Québec, 2018 QCCA 695; Roussel v. Créations Marcel Therrien inc., 2011 QCCA 496, [2011] R.J.Q. 555; GlobalCredit & Collection Inc. v. Rolland, 2011 QCCA 2278, [2012] R.J.Q. 12; Gauthier v. Beaumont, (SCC), [1998] 2 S.C.R. 3; PellerinSavitz LLP v. Guindon, 2017 SCC 29, [2017] 1 S.C.R. 575; Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287; Rizzo & Rizzo Shoes Ltd. (Re),(SCC), [1998] 1 S.C.R. 27; Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254; Proulx v. Desbiens, 2014 QCCS 4117; Av. Frères du Sacré-Cœur, 2017 QCCS 34; Ryan v.

Moore, 2005 SCC 38, [2005] 2 S.C.R. 53; Canadian National Railway Co. v. Canada (AttorneyGeneral), 2014 SCC 40, [2014] 2 S.C.R. 135; Catudal v. Borduas, 2006 QCCA 1090, [2006] R.J.Q. 2052; P.L. v. J.L., 2011 QCCA 1233, [2011] R.J.Q.1274; C. (S.) v. Archevêque catholique romain de Québec, 2009 QCCA 1349, 326 D.L.R. (4th) 196; Christensen v. Roman Catholic Archbishop of Québec,2010 SCC 44, [2010] 2 S.C.R. 694; Angus v. Sun Alliance Insurance Co., (SCC), [1988] 2 S.C.R. 256; British Columbia v. ImperialTobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Tran v.

Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R.289; Banque de Nouvelle-Écosse v. Cohen, Québec (Commission de la construction) v. Gastier inc., Gravel v.City of St-Léonard, (SCC), [1978] 1 S.C.R. 660; Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, [2013] 3S.C.R. 125; Western Minerals Ltd. v. Gaumont, (SCC), [1953] 1 S.C.R. 345; Reid v. Reid (1886), 31 Ch. D. 402; Kent v. The King, 1924

14 (SCC), [1924] S.C.R. 388. Statutes and Regulations Cited Act respecting the implementation of the reform of the Civil Code, CQLR, c. CCQ-1992, s. 6. Act to amend the charter of Les Religieux de Sainte-Croix, S.Q. 1947, c. 121. Act to amend the Crime Victims Compensation Act, the Act to promote good citizenship and certain provisions of the Civil Code concerning prescription,S.Q. 2013, c. 8, s. 13 [Act 8]. Act to incorporate Les Frères de Sainte-Croix, S.Q. 1947, c. 122. Act to incorporate Les Religieux de Ste. Croix, S.Q. 1935, c. 152. Act to incorporate “St. Joseph’s Oratory of Mount Royal”, S.Q. 1916, c. 90,

preamble, ss. 1, 2, 4, 5, 7. Act to reform the Code of Civil Procedure, S.Q. 2002, c. 7, s. 150. Business Corporations Act, CQLR, c. S-31.1. Civil Code of Québec, art. 298, 302, 309, 317, Book Five, 1457, 1463, 1526, 1528, 1529, Book Eight, 2878, 2880 para. 2, 2904, 2905, 2921, 2925, 2926,2926.1, 2927, 2928, 2932. Code of Civil Procedure, CQLR, c. C-25, art. 1003. Code of Civil Procedure, CQLR, c. C-25.01, art. 23, 51, 571, 574, 575, 588 para. 2. Companies Act, CQLR, c. C-38,

Part III, s. 18(6).

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Baudouin, Jean-Louis, Patrice Deslauriers et Benoît Moore. La responsabilité civile, 8e éd. Cowansville, Que.: Yvon Blais, 2014. Chamberland, Luc, dir. Le grand collectif: Code de procédure civile — Commentaires et annotations, 2e éd. Montréal: Yvon Blais, 2017. Côté, Pierre-André, et Daniel Jutras. Le droit transitoire civil: Sources annotées, Cowansville, Que.: Yvon Blais, 1994 (feuilles mobiles mises à jourfévrier 2006, envoi no 17). Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The

Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell,2011. Cotnam, Geneviève. “Chronique — La prescription en matière d’actes criminels et d’agressions sexuelles: la question est-elle réellement close?”, Repères,mars 2014 (available online in La référence). Craies, William Feilden. Craies on Legislation: A Practitioners’ Guide to the Nature, Process, Effect and

Interpretation of Legislation, 11th ed., by DanielGreenberg. London: Sweet & Maxwell, 2017. Craies, William Feilden. Craies on Statute Law, 7th ed., by S. G. G. Edgar. London: Sweet & Maxwell, 1971. Crête, Raymonde, et Stéphane Rousseau. Droit des sociétés par actions, 3e éd. Montréal: Thémis, 2011. Durocher, André, et Claude Marseille. “Autorisation d’exercer une action collective”, dans JurisClasseur Québec — Collection droit civil — Procédurecivile II, par Pierre-Claude Lafond, dir. Montréal: LexisNexis, 2015, fascicule 21 (feuilles mobiles mises à jour novembre 2018). Ferland, Denis, et Benoît Emery.

Précis de procédure civile du Québec, vol. 2, 5e éd. Montréal: Yvon Blais, 2015. Finn, Shaun. Recours singulier et collectif: Redéfinir le recours collectif comme procédure particulière. Cowansville, Que.: Yvon Blais, 2011. Finn, Shaun E. Class Actions in Québec: Notes for Non-Residents, 2nd ed. Montréal: Yvon Blais, 2018. Finn, Shaun E. L’action collective au Québec. Cowansville, Que.: Yvon Blais, 2016. Finn, Shaun E., dir. Manuel de l’action collective. Montréal: LexisNexis, 2017.

Fortier-Dumais, Stéphanie. “La prescription”, dans Collection de droit de l’École du Barreau du Québec 2018-2019, vol. 5, Responsabilité. Montréal:Yvon Blais, 2018, 251. Gervais, Céline. La prescription. Cowansville, Que.: Yvon Blais, 2009. Ghestin, Jacques, et Gilles Goubeaux. Traité de droit civil: Introduction générale, 3e éd. Paris: Librairie générale de droit et de jurisprudence, 1990. Jutras, Daniel. “À propos de l’opportunité du recours collectif”, dans Colloque sur les recours collectifs 2007. Montréal: Association du Barreau canadien,2007, 7.

Lafond, Pierre-Claude. Le recours collectif comme voie d’accès à la justice pour les consommateurs . Montréal: Thémis, 1996. Lafond, Pierre-Claude. “Le recours collectif: entre la commodité procédurale et la justice sociale” (1998-1999), 29 R.D.U.S. 4. Lafond, Pierre-Claude. Le recours collectif, le rôle du juge et sa conception de la justice : impact et évolution . Cowansville, Que.: Yvon Blais, 2006. Lambert, Édith. “Commentaire sur l’

article 2926.1 C.c.Q. ”, dans Commentaires sur le Code civil du Québec (DCQ) . Cowansville, Que.: Yvon Blais, 2014. Langevin, Louise. “Suspension de la prescription extinctive: à l’impossible nul n’est tenu” (1996), 56 R. du B. 265. Langevin, Louise, et Nathalie Des Rosiers, avec la collaboration de Marie-Pier Nadeau. L’indemnisation des victimes de violence sexuelle et conjugale , 2 e éd. Cowansville, Que.: Yvon Blais, 2012. Levesque, Frédéric. “Renouveau doctrinal en droit de la prescription” (2011), 52 C. de D. 315.

Levesque, Frédéric, et Claudie-Émilie Wagner-Lapierre. “La réforme de la prescription civile en matière d’infraction criminelle: une occasion manquée pour les victimes de préjudice corporel” (2015), 49 R.J.T.U.M . 685. Marseille, Claude. “Le danger d’abaisser le seuil d’autorisation en matière d’actions collectives — Perspectives d’un avocat de la défense”, in Catherine Piché, ed., The Class Action Effect . Montréal: Yvon Blais, 2018, 247. Martel, Paul. Business Corporations in Canada: Legal and Practical Aspects . Toronto: Thomson Reuters, 2005 (loose-leaf updated 2018, release 7).

Martel, Paul, avec la collaboration de Georges A. Lebel et Luc Martel. La corporation sans but lucratif au Québec . Montréal: Wilson & Lafleur/Martel ltée, 1987 (feuilles mobiles mises à jour juillet 2018, envoi n o 49). Mazeaud, Henri, et autres. Leçons de droit civil , 8 e éd., t. II, vol. I, Obligations: théorie générale . Paris: Montchrestien, 1991. McCann, Julie. Prescriptions extinctives et fins de non-recevoir . Montréal: Wilson & Lafleur, 2011. Ogilvie, M. H. Religious Institutions and the Law in Canada , 4th ed. Toronto: Irwin Law, 2017. Québec. Assemblée nationale.

Commission permanente des institutions. “Étude détaillée du projet de loi n o 22 — Loi modifiant la

Loi sur l’indemnisation des victimes d’actes criminels”, Journal des débats , vol. 43, n o 47, 1 re sess., 40 e lég., 7 mai 2013, p. 3, 5, 7-9, 13, 20 et 32. Québec. Ministère de la Justice. Commentaires du ministre de la Justice , t. II, Le Code civil du Québec — Un mouvement de société . Québec: Publications du Québec, 1993. Québec. Ministère de la Justice. Commentaires de la ministre de la Justice: Code de procédure civile,

chapitre C-25.01 . Montréal: SOQUIJ, 2015. Roubier, Paul. Le droit transitoire: conflits des lois dans le temps , 2 e éd. Cowansville, Que.: Yvon Blais, 1993. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. Turgeon, Jean. “Le Code civil du Québec , les personnes morales, l’

article 317 C.c.Q. et la levée de l’immunité des administrateurs, des dirigeants et des actionnaires” (2005), 65 R. du B. 115. Wagner, Richard. “How the Class Action has evolved to become the Procedural Tool it is today”, in Catherine Piché, ed., The Class Action Effect . Montréal: Yvon Blais, 2018, 273. APPEALS from a judgment of the Quebec Court of Appeal (Gagnon, Marcotte and Healy JJ.A.), 2017 QCCA 1460 , [2017] J.Q. n o 13138 (QL), 2017 CarswellQue 8365 (WL Can.), setting aside a decision of Lanctôt J., 2015 QCCS 3583 , [2015] J.Q. n o 7141 (QL), 2015 CarswellQue 7360 (WL Can.).

Appeals dismissed, Wagner C.J. and Gascon and Rowe JJ. dissenting in part and Côté J. dissenting. Marc Beauchemin and Emmanuel Laurin-Légaré , for the appellant/intervener L’Oratoire Saint-Joseph du Mont-Royal. Éric Simard , Stéphanie Lavallée and Marie-Pier Gagnon Nadeau , for the appellant/intervener Province canadienne de la Congrégation de Sainte-Croix. Robert Kugler , Alain Arsenault , Gilles Gareau , Pierre Boivin and Olivera Pajani , for the respondent. English version of the judgment of Abella, Moldaver, Karakatsanis, Brown and Martin JJ. delivered by Brown J. — I.

Introduction [ 1 ] I have read the carefully crafted reasons of my colleague Gascon J., in which he provides a thorough and comprehensive review of the facts and the judicial history. I will therefore limit myself here to a few words on the context of the two appeals before the Court. In his re-amended motion for authorization to institute a class action and to be a representative plaintiff dated May 8, 2015 (“application”), A.R.C., at pp. 96-111, and A.R.O., vol.

I, at pp. 89-104, the respondent, J.J., applies for authorization to institute a class action on behalf of all [1] victims of sexual assaults that are alleged to have been committed in various institutions in Quebec since 1940 by brothers and fathers who were members of the religious community known as the Congregation of Holy Cross.

As defendants, J.J. has designated the appellant Province canadienne de la Congrégation de Sainte-Croix (“Congregation”) — which is at present the legal person whose objects are to organize, administer and maintain that religious community — and the appellant Oratoire Saint-Joseph du Mont-Royal (“Oratory”) — which is an institution in which J.J. alleges he was sexually assaulted as a child and that is or was at the time of the events controlled by the religious community known as the Congregation of Holy Cross.

The appellants vehemently object to the granting of authorization to institute a class action against them. [ 2 ] The Congregation argues that it was constituted a corporation only in 2008 and that it cannot be held liable for acts that are for the most part alleged to have been committed before it was incorporated.

It suggests that J.J. should instead have sued Corporation Jean-Brillant — a legal person that existed at the time of the events as “Les Frères de Sainte-Croix”, but that today reports no establishments or employees and does not have as its objects to organize, administer and maintain a religious congregation. The Oratory, for its part, submits that it has no connection with the religious community known as the Congregation of Holy Cross. It claims to be a distinct entity whose sole mission is to operate and maintain that place of worship.

In addition, both the appellants are of the view that, in any event, J.J.’s personal action is irreparably forfeit as a result of art. 2926.1 para. 2 of the CivilCode of Québec (“C.C.Q.”). [3] The Quebec Superior Court refused to authorize the institution of the class action against the two appellants, but a majority of theQuebec Court of Appeal reversed that judgment. The dissenting Court of Appeal judge agreed with authorizing the class action against the Congregation,but not against the Oratory. [4] I am in complete agreement with the analysis of my colleague Gascon J. on the subject of art. 2926.1 C.C.Q., and in particular withhis conclusion that the second paragraph of that

article does not, as the appellants argue, create a term for forfeiture (délai de déchéance). I also concur inhis proposal that the Congregation’s appeal be dismissed. With great respect, however, I cannot agree with his conclusion regarding the Oratory. In myopinion, the judgment in which the Superior Court denied authorization to institute a class action against both the Congregation and the Oratory is taintedby numerous errors, of fact and of law, in relation to all the conditions set out in art. 575 of the Code of Civil Procedure, CQLR, c.

C-25.01 (“C.C.P.”),formerly art. 1003 of the Code of Civil Procedure, CQLR, c. C-25. It was therefore open to the Court of Appeal to intervene and to substitute its ownassessment with regard to those conditions for that of the Superior Court judge. [5] With respect, I see nothing that would justify this Court in reversing the Court of Appeal’s decision to authorize the institution of aclass action against both the Congregation and the Oratory.

The connection between the Congregation and the Oratory is so close — J.J.’s allegations andthe exhibits filed in support of the application against both these entities are in fact largely identical — that, respectfully, the result proposed by thedissenting Court of Appeal judge is not really convincing.

Similarly, the Superior Court judge’s assertion that the application is [translation] “practicallysilent regarding involvement on the Oratory’s part” is, again with respect, incorrect, and clearly does not suffice to dispose of the proposed class actionagainst the Oratory: 2015 QCCS 3583, at para. 137 The main allegations in the application, set out in paras. 3.33 to 3.38, are written in the plural(“the respondents”) and therefore apply to the Oratory as much as to the Congregation. The two appeals should accordingly be dismissed, with costs to J.J. II. Analysis [6]

Article 571 para. 1 C.C.P. defines the class action as a procedural means enabling a person who is a member of a class of persons tosue, without a mandate, on behalf of all the members of the class and to represent the class. This procedural vehicle has several objectives, namely tofacilitate access to justice, to modify harmful behaviour and to conserve judicial resources: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, atpara. 15; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at paras. 27-29; Vivendi Canada Inc. v.

Dell’Aniello,2014 SCC 1, [2014] 1 S.C.R. 3, at para. 1. Prior authorization of a court is required for a person to institute a class action: art. 574 para. 1 C.C.P. Indisposing of an application for authorization of this nature, the court must assess the four conditions set out in art. 575 C.C.P., which reads as follows: 575.

The court authorizes the class action and appoints the class member it designates as representative plaintiff if it is of the opinion that (1) the claims of the members of the class raise identical, similar or related issues of law or fact; (2) the facts alleged appear to justify the conclusions sought; (3) the composition of the class makes it difficult or impracticable to apply the rules for mandates to take

part in judicial proceedings on behalf of othersor for consolidation of proceedings; and (4) the class member appointed as representative plaintiff is in a position to properly represent the class members. [7] At the authorization stage, the court plays a “screening” role: Infineon Technologies AG v. Option consommateurs, 2013 SCC 59,[2013] 3 S.C.R. 600, at paras. 59 and 65; Vivendi, at para. 37. It must simply ensure that the applicant meets the conditions of art. 575 C.C.P. If theconditions are met, the class action must be authorized. The Superior Court will consider the merits of the case later.

This means that, in determiningwhether the conditions of art. 575 C.C.P. are met at the authorization stage, the judge is ruling on a purely procedural question. The judge must not dealwith the merits of the case, as they are to be considered only after the application for authorization has been granted: Infineon, at para. 68; Vivendi, atpara. 37; Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65, at para. 22. [8] The Court has given “a broad

interpretation and application to the requirements for authorization [of the institution of a class action],and ‘the tenor of the jurisprudence clearly favours easier access to the class action as a vehicle for achieving the twin goals of deterrence and victimcompensation’”: Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725, at para. 43, quoting Infineon, at para. 60; see also Marcotte v.Longueuil, at para. 22. In other words, the class action is not an [translation] “exceptional remedy” that must be interpreted narrowly: Tremaine v.

A.H.Robins Canada Inc., (QC CA), [1990] R.D.J. 500 (C.A.); see also Comité d’environnement de La Baie Inc. v. Société d’électrolyse et dechimie Alcan Ltée, (QC CA), [1990] R.J.Q. 655 (C.A.). On the contrary, it is [translation] “an ordinary remedy whose purpose is tofoster social justice”: Harmegnies v. Toyota Canada inc., 2008 QCCA 380, at para. 29 see also Bisaillon v. Concordia University, 2006 SCC 19,[2006] 1 S.C.R. 666, at para. 16; Pharmascience inc. v. Option Consommateurs, 2005 QCCA 437, at para. 20 Trottier v.

Canadian MalarticMine, 2018 QCCA 1075, at paras. 35-36 There are those who consider that [translation] “the class action is highly appropriate in sexual abusecases, given the great vulnerability of the victims”: L. Langevin and N. Des Rosiers, with the collaboration of M.-P. Nadeau, L’indemnisation des victimesde violence sexuelle et conjugale (2nd ed. 2012), at p. 370; see also, on this point, Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, atpara. 39; Griffith v.

Winter, 2002 BCSC 1219, 23 C.P.C. (5th) 336, at para. 38, aff’d 2003 BCCA 367, 15 B.C.L.R. (4th) 390. [9] In ruling on the Oratory’s appeal, there are two questions that must be answered. The first is whether the Court of Appeal’sintervention in the Superior Court judge’s decision was justified.

The second, which arises only if the Court of Appeal is found to have been justified inintervening and in substituting its own assessment with respect to the conditions of art. 575 C.C.P. for that of the Superior Court judge, is whether theCourt of Appeal’s decision to authorize the class action against both the Congregation and the Oratory is itself tainted by an error that justifies a review bythis Court. A.

Was the Court of Appeal’s Intervention in the Superior Court Judge’s Decision Justified? [10] The Court of Appeal’s “power to intervene . . . is limited” when it hears an appeal from a decision on an application for authorization toinstitute a class action, which means that “it must show deference to the motion judge’s decision”: Vivendi, at para. 34. It is well established that theassessment of whether the conditions for authorization are met entails the exercise of a discretion: Harmegnies, at paras. 20-24.

The Court of Appeal “willtherefore intervene . . . only if the motion judge erred in law or if the judge’s assessment with respect to the criteria of art. [575] C.C.P. is clearly wrong”:Vivendi, at para. 34. Moreover, “[i]f the motion judge errs in law or if his or her assessment with respect to any criterion of art. [575] C.C.P. is clearlywrong, the Court of Appeal can substitute its own assessment, but only for that criterion and not for the others”: Vivendi, at para. 35; see also Sofio v.Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2015 QCCA 1820, at para. 17 Sibiga v.

Fido Solutionsinc., 2016 QCCA 1299, at paras. 32-35 Charles v. Boiron Canada inc., 2016 QCCA 1716, at para. 37 Belmamoun v. Brossard (Ville),2017 QCCA 102, 68 M.P.L.R. (5th) 46, at para. 70. [11] It should be noted, however, that while it is true that the Court of Appeal’s power to intervene in a decision on an application forauthorization to institute a class action is limited, so too is the application judge’s role:

While the compass for appellate intervention is indeed limited, so too is the role of the motion judge. In clear terms, particularly since itsdecision in Infineon, the Supreme Court has repeatedly emphasized that the judge’s function at the authorization stage is only one of filtering out untenableclaims.

The [Supreme] Court stressed that the law does not impose an onerous burden on the person seeking authorization. “He or she need only establish a‘prima facie case’ or an ‘arguable case’”, wrote LeBel and Wagner JJ. in Vivendi, specifying that a motion judge “must not deal with the merits of the case,as they are to be considered only after the motion for authorization is granted”.

Since Infineon, [the] Court [of Appeal] has consistently relied upon this standard, invoking it when authorization has been wrongly deniedbecause too high a burden was imposed. (Sibiga, at paras. 34-35) [12] Thus, a judge who oversteps the bounds of his or her screening role at the authorization stage, and in so doing imposes an excessiveevidentiary threshold requirement on the applicant or considers the merits of the case, makes an error of law warranting the Court of Appeal’s intervention:Vivendi, at paras. 4 and 37; Infineon, at paras. 40 and 68; Marcotte v.

Longueuil, at para. 22; see also Sibiga, at paras. 71 and 80; Masella v. TD BankFinancial Group, 2016 QCCA 24, at para. 9 [13] In the case at bar, the Superior Court judge’s reasons in support of his conclusion denying authorization to institute a class actionagainst the Oratory were particularly brief: paras. 128-38.

Aside from his comments casting doubt on the fact that only the Oratory was being suedtogether with the Congregation whereas, in his view, logic would instead have dictated either that all the institutions where members of the class arealleged to have been sexually assaulted should be sued or that none of them should be — an argument to which I will return below — the judge merelystated that [translation] “the reasons that justify denying the action against the Congregation . . . are the same as the ones that apply to the action againstthe Oratory”: para. 138 (emphasis added).

With respect, it therefore seems somewhat incongruous to conclude, as Gascon J. does, that the Court ofAppeal’s intervention was justified with regard to the proposed class action against the Congregation, but that that court was not justified in interveningwith regard to the contemplated class action against the Oratory. [14] That being said, it is useful to review some of the errors made by the Superior Court judge that justified the Court of Appeal’sintervention.

I note that the Superior Court judge found that none of the conditions of art. 575 C.C.P. were met, whereas the Court of Appeal concluded tothe contrary, that all of them were. In this Court, the Oratory is challenging only the conclusions that J.J. meets the conditions of commonality of issues(art. 575(1) C.C.P.) and sufficiency of the alleged facts (art. 575(2) C.C.P.). The Oratory is also arguing that a “forfeiture” of J.J.’s personal action affectshis ability to obtain the status of a representative plaintiff who is capable of properly representing the class members (art. 575(4) C.C.P.): A.F.O., atpara. 114.

On the other hand, counsel for the Oratory expressly confirmed at the hearing of the appeal that his client would not be challenging theconclusion that J.J. meets the composition of the class condition (art. 575(3) C.C.P.).

Although the Oratory’s challenge to J.J.’s status as representativeplaintiff for the class members is based solely on arguments relating to the supposed “forfeiture” of his personal action, I find it worthwhile to discuss theSuperior Court judge’s errors in relation to this condition as well as to the other two conditions at issue in this Court, given that the judge’s own reasonssuggest that the errors he made with respect to the condition of status as representative plaintiff affected his analysis regarding the other conditions.

Hestated that the circumstances of the case before him [translation] “highlight the fact that the various conditions set out in [art. 575 C.C.P.] are notwatertight compartments” and that, as a result, “the reasons why [the application had to] fail with respect to one of the requirements also justif[ied]dismissing it in relation to another”: para. 22, quoting Del Guidice v. Honda Canada inc., 2007 QCCA 922, [2007] R.J.Q. 1496, at para. 40; see alsopara. 23.

(1) Intervention of the Court of Appeal With Regard to the Condition of Commonality of Issues (Article 575(1) C.C.P.) [15] The Superior Court judge noted that several issues raised by the proposed class action, such as those related to prescription and to theexistence of damages or of a causal connection, [translation] “will have to be analyzed individually, which means that they cannot be the subject ofcommon questions of law or of fact”: para. 127.

The Court of Appeal rightly found that this factor could not in and of itself justify dismissing theapplication for authorization: [translation] “It is quite possible that the determination of common issues does not lead to the complete resolution of thecase, but that it results instead in small trials at the stage of the individual settlement of the claims, which does not preclude a class action suit” (2017QCCA 1460, at para. 55 quoting Collectif de défense des droits de la Montérégie (CDDM) v.

Centre hospitalier régional du Suroît du Centre desanté et de services sociaux du Suroît, 2011 QCCA 826, at para. 23 quoted with approval in Vivendi, at para. 42; see also Sibiga, at paras. 115,123 and 128). [16] The Superior Court judge also stressed that there were differences between the situations of the class members, given that [translation]“there could be an indeterminate number of places where wrongful acts are alleged to have been committed”: para. 120.

In addition, he stated that “[a]ll theother cases of the same nature in which authorization to institute a class action was granted . . . concerned a single institution in which acts had allegedlybeen committed by one or more well-identified persons”: para. 119 (emphasis added). As the judge himself noted at para. 119 (fn. 39) of his reasons,however, there is at least one exception. In Cornellier v.

Province canadienne de la Congrégation de Ste-Croix, 2011 QCCS 6670 (“Cornellier”), theSuperior Court authorized the institution of a class action in a case that concerned sexual abuse, by members of the Congregation, of students who hadattended Collège Notre-Dame, Collège Saint-Césaire and École Notre-Dame de Pohénégamook. [17] But the Court of Appeal stressed that the Congregation was being sued [translation] “not because of the establishments [it] operate[s],but because the assailants are members of the Congregation”: para. 64; see also para. 97.

As the Court of Appeal pointed out, “[t]he idea of an independentestablishment, in the sense of a distinct enterprise, that the Judge accepted does not reflect the Congregation’s reality”, as its members, depending on theirassignments, “could probably move from one establishment to another quite informally”: para. 63; see, for example, Exhibit R-8 (“table of victims”),A.R.C., at pp. 151-52, regarding the situations of Brother Brunelle, who was assigned in succession to Orphelinat Saint-Joseph and École artisanaleNotre-Dame-des-Monts, and Brother Bernard, who was assigned first to the Oratory and then to an establishment in Waterville.

It should be mentioned inthis regard that the Congregation reports having nearly 20 establishments in Quebec: see Exhibits R-1 (amended), information statement for theCongregation in the enterprise register (2015), and R-1.2, information statement for the Congregation in the enterprise register (2014), A.R.C., atpp. 135-36 and 147-48. [18] However, all the class members were allegedly assaulted by members of the Congregation, regardless of the places where the assaultsare alleged to have occurred.

These members of the Congregation necessarily engaged in their activities with children with the consent or under theauthority of the Congregation’s officers (C.A. reasons, at para. 57); J.J. alleges that the Congregation is an institute of consecrated life that is subject tocanon law (paras. 3.39 and 3.40 of the application); regarding the authority of the superior of a religious institute over the institute’s members, seeparas. 3.40.1 to 3.47 of the application; see also Exhibits R-6, T. P. Doyle, Canon Law: What Is It? (2006) (“Doyle article (2006)”), A.R.O., vol.

II, atp. 87, and R-7, excerpts from the Code of Canon Law (French version only), canons 1395 and 1717, A.R.O., vol. II, at pp. 89-93; finally, see by analogyJohn Doe v. Bennett, 2004 SCC 17, [2004] 1 S.C.R. 436, at paras. 21 and 27-28; Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534, atparas. 44 and 46; M. H. Ogilvie, Religious Institutions and the Law in Canada (4th ed. 2017), at pp. 226 and 320.

This means that all the class membersclearly have an interest in having at least one common question decided, one “that would serve to advance the resolution of the litigation with respect to allthe members of the group, and that would not play an insignificant role in the outcome of the case” (Vivendi, at para. 60), that is, the question of theCongregation’s liability for the alleged assaults on children by some of its members who were engaging in activities with those children with the consentor under the authority of the Congregation’s officers. [19] The main issue here concerns liability based on a direct fault of the Congregation (or, more simply, its direct liability) for alleged

“systemic” negligence in relation to alleged assaults on children by its members. The Court of Appeal concluded in this regard that [translation] “thequestions inherent in the issue of direct liability of the [Congregation] are on their own capable of clearly advancing the case toward a resolution of thelitigation”: para. 67 (emphasis added); see also para. 106. It should in fact be noted that all the common issues identified by J.J. that were authorized by theCourt of Appeal actually related to the question whether the Congregation was negligent toward the victims of assaults allegedly committed by itsmembers.

J.J. alleges that the Congregation [translation] “allowed [its] members . . . to sexually abuse minor children in public schools, in orphanages, atthe Oratory . . . and in other places”: para. 3.33 of the application. The Congregation also allegedly “subjected the victims to mental, religious andpsychological duress by discouraging them from reporting the sexual abuse by [its] members”: para. 3.34 of the application. J.J. further alleges that theCongregation “[was] aware of the sexual abuse by [its] members . . . but nevertheless hushed it up”: para. 3.35 of the application.

J.J. adds that theCongregation “knowingly and consciously chose to ignore the issue of sexual abuse of minor children by [its] members”: para. 3.36 of the application. [20] In sum, the Court of Appeal was right to intervene in the Superior Court’s judgment, because the application judge had erred in lawregarding the main components of art. 575(1) C.C.P. by emphasizing the differences between the class members that related to the fact that the assaultshad allegedly been committed in [translation] “an indeterminate number of places” (para. 120) rather than acknowledging that there was at least onecommon question stemming from the fact that all the class members were alleged to be victims of members of the Congregation: Vivendi, at para. 60.

(2) Intervention of the Court of Appeal With Regard to the Condition of Sufficiency of the Alleged Facts (Article 575(2) C.C.P.) [21] The Superior Court judge was essentially of the view that no [translation] “specific, tangible facts” were alleged in the application insupport of J.J.’s claim that the Congregation knew about the assaults on children allegedly committed by its members: para. 103; see also para. 105. Thejudge discounted Exhibit R-3, M. Benkert and T. P. Doyle, Religious Duress and Its Impact on Victims of Clergy Sexual Abuse, November 27, 2008(“Benkert and Doyle article (2008)”), A.R.O., vol.

II, at pp. 33-71, and the Doyle article (2006) on the basis that they were “opinion papers”: paras. 108-9.He also found that the information in Exhibit R-4, DVD of the Radio-Canada program Enquête, September 30, 2010 (“DVD of the Enquête program”),“[was] . . . of no assistance for the purposes of this proceeding”: para. 111.

In addition, he attributed little — indeed no — probative value to the table ofvictims, particularly because J.J.’s counsel were involved in preparing it, and even stated that “it cannot be assumed at this stage that the people listed in[the table of victims] are in fact victims of members of [the Congregation] as opposed to victims of other religious communities”: para. 57. [22] With respect, the Superior Court judge clearly overstepped the bounds of his screening role by considering the merits of the case at theauthorization stage: Vivendi, at paras. 4 and 37; Infineon, at paras. 40 and 68; Marcotte v.

Longueuil, at para. 22; Sibiga, at paras. 71 and 80. A judge whorules at the authorization stage on the probative value of evidence presented in support of the application or who, in the absence of exceptionalcircumstances, refuses to take it into consideration makes

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