2022 QCCA 1695, 2022 QCCA 1695

Samsung Electronics Canada c. Arial 2022 QCCA 1695 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos.: 500-09-030262-224 , 500-09-030263-222 (500-06-001018-197) DATE: December 14, 2022 BEFORE THE HONOURABLE BENOÎT MOORE, J.A. No. 500-09-030262-224 Samsung Electronics Canada Samsung electronics Co. LTD. APPLICANTS – Defendants v. Tracey Arial Claire O’brien Erika Patton Zoe Patton Alexander Tasciyan Mathew Nucciarone Vito Decicco RESPONDENTS – Plaintiffs and Apple Canada Inc. Apple Inc. IMPLEADED PARTIES – Defendants No. 500-09-030263-222 Apple Canada Inc. Apple Inc. APPLICANTS – Defendants v.

Tracey Arial Claire O’brien Erika Patton Zoe Patton Alexander Tasciyan Mathew Nucciarone Vito Decicco RESPONDENTS – Plaintiffs and

Samsung Electronics Canada Samsung electronics Co. LTD. IMPLEADED PARTIES – Defendants JUDGMENT [ 1 ] The applicants, Samsung and Apple, both seek leave to appeal from the Superior Court judgment dated September 22, 2022 (the Honourable Mr. Justice Christian Immer) [1] , which authorized the respondents to institute a class action against each of the applicants. [ 2 ] Although the trial judge authorized the institution of a class action, he did so only after having significantly reformulated the proposed syllogisms and having reduced the number of common questions.

Here is how the judge presented the application for authorization as initially formulated by the representative plaintiffs: [1] The seven Plaintiffs have owned, leased or used various iPhones and Samsung Phones over the years. They are convinced that Apple and Samsung phones do not meet regulatory requirements, that they constitute a health risk and that Apple and Samsung are hiding this from consumers. They also believe that the regulatory standards developed by a regulator “embedded” with the industry are grossly inadequate.

According to them, radiofrequency radiation emitted by cellphones is a “toxic and addictive pollutant” and they are being exposed to “harmful levels of radiofrequency radiation”. [ 3 ] The class action is essentially based on the following three syllogisms: [9] More specifically, their arguments follow three lines of attacks (syllogisms #1, #2 and #3): 9.1. Syllogism #1 : Samsung and Apple falsely represent that they meet the existing very minimal regulatory standards.

Despite being certified, later tests carried out by various third parties on Apple iPhones, show exceedances of the maximum 1.6 W/kg maximum SAR values for head, neck and trunk. Furthermore, Samsung phones are tested at 15 mm. This is in contravention with the applicable standards and specifications which call for testing at 5 mm. In any event, Apple and Samsung test the phones using a “phony testing regimen” since proximity sensors reduce the power at which phones are being tested. Therefore, any certification is fraudulent. 9.2.

Syllogism #2 : the regulatory scheme under which ISED certifies cellphones is void and inoperative and cannot be relied on. In any event, Plaintiffs must prove that their phones are safe in real use conditions, regardless of regulatory separation distances, and that they do not exceed the maximum SAR limit of 1.6 W/kg limit. In real life situations, cellphones are placed in pockets, at 2 mm from the body, not at 5 mm or 15 mm. For each mm below the 5 mm separation distance, SAR values increase considerably.

Tests carried out by third parties validate this and SAR measurements at a 2 mm separation distance necessarily will far exceed the SAR 1.6 W/kg limit. 9.3. Syllogism #3 : Health Canada’s findings that there are no non-thermal effects associated to RF exposure are incorrect and dated. Research shows clear links between RF exposure and non-thermal effects. This occurs at SAR levels below 1.6 W/kg. These risks or dangers are hidden from the consumers by the manufacturers. [ 4 ] After examining the evidence before him, the judge rejected the first of these syllogisms, which he found to be untenable.

As regards the other two, he accepted them in part and reformulated them as follows: [14] On the basis of these factual premises, Plaintiffs meet their burden to demonstrate that it is tenable and not frivolous to advance the following syllogisms: 14.1. The cellphones pose a risk or danger when placed too close to the body or because of RF exposure more generally. A lack of instructions necessary for the protection of cellphone users against a risk or danger of which they would be otherwise unaware constitute a safety defect as per the second paragraph of s. 53, CPA .

Plaintiffs are therefore entitled to punitive damages by relying on s. 272 CPA . 14.2. The cellphones pose a risk or danger when placed too close to the body or because of RF exposure more generally. A lack of instructions necessary for the protection of cellphone users against a risk or danger of which they would be otherwise unaware is a prohibited practice as per s. 228 of the CPA . There is a lack of instructions given the risk or danger.

Plaintiffs are therefore entitled to punitive damages by relying on s. 272 CPA . [ 5 ] In their application for authorization to institute a class action, the applicants had submitted 21 common questions. The judge, however, focused the debate on only the following six questions: [239] Most of these questions are inappropriate and they are not presented in a logical order. Hence, the Court will recast them as follows: 1. Do the defendants phones cause the SAR level to exceed 1.6W/kg on 1 g of tissue and if yes, at what separation distance? 2. Does this pose a risk or a danger to the user? 3.

Can RF exposure, regardless of separation distance, cause adverse health effects thereby constituting a risk or danger? 4. Should Apple and Samsung have provided instructions to protect users against such risks or danger, thereby triggering their liability under s. 53 CPA ? 5. Is this an important fact which Apple and Samsung failed to mention to users, in violation of s. 228 CPA?

6. Should Apple or Samsung pay punitive damages? [ 6 ] The application for leave in the present matter is governed by art. 578 of the Code of Civil Procedure , which reads as follows: 578. A judgment authorizing a class action may be appealed only with leave of a judge of the Court of Appeal. A judgment denying authorization may be appealed as of right by the applicant or, with leave of a judge of the Court of Appeal, by a member of the class on whose behalf the application for authorization was filed. 578.

Le jugement qui autorise l’exercice de l’action collective n’est sujet à appel que sur permission d’un juge de la Cour d’appel. Celui qui refuse l’autorisation est sujet à appel de plein droit par le demandeur ou, avec la permission d’un juge de la Cour d’appel, par un membre du groupe pour le compte duquel la demande d’autorisation a été présentée. [ 7 ] The low threshold for the burden of proof required at the class action authorization stage entails an inversely high threshold to convince a judge sitting alone to grant leave to appeal from a judgment having authorized the institution of a class action.

This does not imply, however, that such leave cannot be granted. [2] In Allen , [3] this Court set out the principles that apply to such matters: [54] À mon avis, le test que le juge d’appel doit appliquer à une demande de permission de faire appel d’un jugement autorisant l’exercice d’une action collective ne doit pas être à ce point sévère qu’il stérilise le droit d’appel, ni à ce point souple qu’il place les deux parties à l’action collective à toutes fins utiles sur le même pied en ce qui a trait au droit d’appel et devienne une entrave à l’accès à la justice que l’action collective se veut un moyen de faciliter. […] [57] À mon avis, les intimés ont donc raison de soutenir que le test relatif doit être exigeant. [58] L’appel doit être réservé à des cas somme toute exceptionnels. [59] 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. [60] Ce test est fidèle à l’intention du législateur voulant que l’appel ne porte que sur les conditions d’exercice de l’action collective.

Il est de nature à écarter les appels inutiles ou ne portant que sur des éléments accessoire, sans incidence sur l’autorisation d’exercer l’action collective. Il est respectueux de la discrétion du juge qui a autorisé l’action collective. Il n’est pas à ce point souple qu’il alourdirait indirectement le fardeau de ceux qui cherchent à exercer une action collective et à la mener à terme dans des délais raisonnables.

Il permet aussi d’assurer qu’une action collective ne procède pas sur une base erronée, évitant ainsi aux parties d’être entrainées dans un débat judiciaire, long et coûteux. [ 8 ] The applicants submit that the judgment under appeal is the first to authorize a class action against defendants who have complied with applicable regulation requirements and where the class members have not actually suffered any harm.

Under these circumstances, they argue that the instant class action is a type of commission of inquiry seeking to evaluate, on a purely theoretical basis, the rules adopted by the regulatory authorities. [ 9 ] The applicants submit that the allegations of fact that the judge accepted as having been proved were not proved, and even if they had been, they would not support an award of punitive damages.

The applicants therefore argue that, as this Court recently pointed out, [4] the judge should have ensured that the claim for punitive damages was supported not merely by vague and general statements, but by sufficient allegations to satisfy the test established by the Supreme Court in Richard v. Time . [5] [ 10 ] The applicants also contend that this principle is all the more important in the instant case because the claim authorized by the judge pertains only to punitive damages, but the application for authorization to institute a class action did not contain any request or allegation to that effect.

In short, the applicants argue that the judgment under appeal authorizes a class action based purely on speculation, thereby eliminating any minimal threshold at the authorization stage. [ 11 ] Considering the representations and all the circumstances, I am of the view that the application for leave to appeal satisfies the applicable criteria and should be granted. [ 12 ]

Article 578 para. 2 C.C.P. specifies that an appeal from a judgment on the authorization to institute a class action must be heard and decided by preference. I therefore proceeded with appeal management to that effect. At the hearing, counsel for the respondents indicated the possibility of an incidental appeal. In order to accelerate matters, I have included this possibility in my appeal management conclusions. Those conclusions will obviously have to be disregarded if the respondents ultimately decide not to file an incidental appeal.

FOR THESE REASONS, THE UNDERSIGNED: [ 13 ] GRANTS the application for leave to appeal; [ 14 ] GRANTS leave to appeal; [ 15 ] ORDERS each of the appellants to file with the Court office, no later than January 23, 2023 , five copies of a memorandum comprising an argument not exceeding 15 pages and the three schedules set out in ss. 51 and 58 R.C.A.Q.Civ.M. , after having notified a copy thereof to the parties having filed a representation or non-representation statement (ss. 55 para. 2 and 58 R.C.A.Q.Civ.M. ); [ 16 ] ORDERS the respondents to file with the Court office, no later than February 27, 2023 , five copies of a memorandum

comprising an argument not exceeding 30 pages, that is, 15 pages per file, and, if necessary, elements in addition to those in the appellants’ schedules (ss. 47 and 58 R.C.A.Q.Civ.M. ), after having notified a copy thereof to the appellants and to the parties having filed a representation or non-representation statement (ss. 55 para. 2 and 58 R.C.A.Q.Civ.M. ); [ 17 ] In the event of an incidental appeal, ORDERS the incidental appellants to file with the Court office, no later than February 27, 2023 , five copies of a memorandum comprising an argument not exceeding 30 pages, that is, 15 pages per file, for each and the three schedules set out in ss. 51 and 58 R.C.A.Q.Civ.M. , after having notified a copy thereof to the parties having filed a representation or non- representation statement (ss. 55 para. 2 and 58 R.C.A.Q.Civ.M. ); [ 18 ] In the event of an incidental appeal, ORDERS each of the incidental respondents to file with the Court office, no later than March 27, 2023 , five copies of a memorandum comprising an argument not exceeding 15 pages and, if necessary, elements in addition to those in the incidental appellants’ schedules (ss. 47 and 58 R.C.A.Q.Civ.M. ), after having notified a copy thereof to the incidental appellants and to the parties having filed a representation or non-representation statement (ss. 55 para. 2 and 58 R.C.A.Q.Civ.M. ); [ 19 ] REFERS the files to the Master of the Rolls for the scheduling, as soon as possible, of a hearing of 90 minutes (25 minutes for each appellants and 40 minutes for the respondents).

In the event of an incidental appeal, the incidental appellants shall be granted an additional 25 minutes and the incidental respondents shall be collectively granted an additional 25 minutes, for a total hearing time of 140 minutes; [ 20 ] REMINDS the parties about the rule set out in art. 376 C.C.P. : 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension.

A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. [ 21 ] REMINDS the parties that, in accordance with s. 13 R.C.A.Q.Civ.M ., they must send to the Court office a technological version of the paper version of their memoranda.

The preparation and transmission of this technological version are governed by the Chief Justice’s Directive entitled “Rules Respecting the Preparation of the PDF Version of Pleadings, Briefs, Memoranda, Books of Authorities or Any Other Document” and the Clerk’s Practice Direction No. 7 entitled “Transmission of the PDF Version of Certain Pleadings, Briefs, Memoranda and Other Documents by Means of the Digital Office of the Court of Appeal (DOCA)”; [ 22 ] THE WHOLE , legal costs to follow. BENOÎT MOORE, J.A.

Mtre Karine Chênevert Mtre Stéphane Pitre Mtre Justine Kochenburger BORDEN LADNER GERVAIS For Samsung Electronics Canada and Samsung Electronics Co.Ltd. Mtre Kristian Brabander OSLER, HOSKIN & HARCOURT Mtre Catherine Martin Mtre Amanda Gravel Mtre Kevin Lee Pinkoski MCCARTHY TÉTRAULT For Apple Canada Inc. and Apple Inc. Mtre Charles O’Brien LORAX LITIGATION For the respondents Date of hearing: December 9, 2022