Nouveautés dans unr ecours collectif contre FIat
Dans ce jugement, la Cour supérieure a analysé la demande de FCA Canada contestant les allégations de la demande introductive visant els véhicules Fiat 500, notamment. En somme, leur demande est presque totalement rejetée. À suivre...
Paciucci c. FCA Canada inc.
2019 QCCS 2012
(Class Actions Chamber)
PROVINCE OF QUEBEC
May 29, 2019
PRESIDING: THE HONOURABLE GARY D.D. MORRISON, J.S.C.
FCA CANADA INC.
(Demand to Submit Evidence)
 Respondent FCA Canada Inc. seeks leave to submit documentary evidence and to depose the two class applicants prior to the Hearing on the Re-Amended Application for Authorization to Institute a Class Action (“Application for Authorization”).
 The Applicants contest in part the demand.
 The class action which Applicants have proposed relates to alleged defects in all Fiat brand vehicle models. The group which they seek to represent is described as follows:
All residents of Canada (or subsidiarily Quebec), who own, owned, lease and/or leased one or more of the Subject Vehicles, or any other Group(s) or Sub-Group(s) to be determined by the Court.
 For the purpose of the group definition, “Subject Vehicles” is defined as meaning:
(…) all Fiat brand vehicle models including without limitation all Fiat 500 and Abarth models, Plaintiffs reserving their right to amend these proceedings to include any further makes or models from the Brands distributed by Respondent with similar door hinge and/or door handle defects and/or malfunctions (…).
 Both Applicants claim to have purchased such Fiat vehicles and to have encountered the problems mentioned above.
2- THE PROOF RESPONDENT SEEKS TO ADDUCE
 Respondent seeks to file three (3) sworn statements, with attached documents, one such statement in relation to the claim of Applicant Carla Paciucci, and the other two as regards Applicant Valérie Champagne. It also seeks to conduct examinations of the two Applicants.
A) As regards Applicant Paciucci
 Respondent argues that Paciucci’s allegation that her vehicle is affected by the alleged latent defect is “total unsubstitiated” and that her claim therefore cannot be an arguable one.
 In this regard, they propose to file the sworn statement of Mikael Perrault a post-sales technical advisor at Trois Diamants Auto (1987) Ltée, a dealership located in Mascouche. The main elements of that statement are as follows:
- That the allegations in paragraphs 39-45 and 49-50 of the Application for Authorization are “inexactes ou tout simplement fausses” (paragraph 5);
- That Applicant Paciucci, on January 5, 2018, after the expiry of the warranty, came to the dealership, asked if her door handles were defective, and was told after inspection that the door handles were fully functional and did not need to be replaced but only lubricated (paragraphs 8, 15 to 17);
- Applicant Paciucci then called Respondent’s client assistance centre with Perrault present and at her request, he then spoke to the client assistance representative, to whom he explained what had transpired (paragraph 18);
- Contrary to what Applicant Paciucci alleges, she was not invoiced for the diagnostic and the lubrications relating to the door handles, but only as regards a separate issue dealing with the car trunk (paragraphs 20 to 22);
- On January 17, 2018, Perrault returned Paciucci’s phone call, and she informed him that the door handles were not functioning. He offered her an appointment to exam the situation, but she refused (paragraph 23).
 In addition, Respondent wishes to file four (4) exhibits identified in Perrault’s sworn statement, being:
- MP-1: Invoice 252440, relating to the January 5, 2015 visit to the dealership;
- MP-2: VIP Summary Report, dated January 26, 2018, showing the 3 year or 60,000 kilometer warranty for Paciucci’s vehicle;
- MP-3: Report from Respondent’s client, assistance centre regarding calls from Paciucci;
- MP-4: All the invoices in Paciucci’s file at the dealership;
 Respondent also seeks to conduct an examination of Applicant Paciucci, for approximately one hour regarding her visits to the dealership and as regards the new allegations contained in the re-amended Application for Authorization.
B) As regards Applicant Champagne
 Applicant Champagne was only added to the proceedings by way of the Amended Application dated November 26, 2018.
 The main elements of the Leblanc statement are:
- From 2013 to 2018, he was Director of Service at Élite Chrysler Jeep Inc., a dealership located in Sherbooke, and from November 2018 he has been the assistant director of service (paragraph 1);
- As regards Champagne’s allegations at paragraphs 58.5 and 58.6 of the Application for Authorization, contrary to her allegations regarding work effected on her vehicle door handles at Élite in December 2014, the dealership records contain no invoice or repair order for her vehicle prior to October 5, 2015, such that she never went to Élite in December 2014 for any issues dealing with door handles (paragraphs 4, 5, 6 and 8);
- Contrary to Champagne’s allegations, she was never invoiced for work relating to the vehicle door handles in December 2014 (paragraph 9);
 In addition, Respondent seeks to file Exhibit “A” to the Leblanc sworn statement, being all invoices and repair orders at Élite relating to the vehicle.
 As regards the sworn statement of Stuart Shaw, the main elements are the following:
- That Champagne’s allegations at paragraphs 58.14 to 58.18 of the Application for Authorization are incomplete and contain certain factual inaccuracies,
- That prior to attending at the dealership on March 15, 2016 for repairs to the driver-side door handle, Champagne had phoned the Respondent’s customer assistance centre who told her to bring her vehicle to a dealership and, further, that if the costs of repair were not covered, then to submit her proof of payment and FCA would determine whether she was eligible for reimbursement (paragraphs 5 and 6);
- On April 27, 2016, she was reimbursed by Respondent the amount of $195.97, being the cost of repair, and this as a goodwill gesture (paragraphs 7 and 8).
 In addition, Respondent seeks to file Exhibit “A”, the documents relating to the reimbursement.
 Again Respondent seeks to conduct an examination of the Applicant, for approximately one hour, regarding her visits to the dealership and as regards the new allegations contained in the re-amended Application for Authorization.
3- APPLICANTS’ POSITION
 The Applicants contest the filing of the Perrault sworn statement in that it primarily seeks to contest Applicant Paciucci’s allegations and, as well, contains hearsay. Moreover, they argue that numerous paragraphs of the sworn statement only confirm what is already alleged and, therefore, are of no value at the authorization stage. As for the other two statements, they contest portions thereof, primarily in relation to hearsay, but also for similar reasons as argued in relation to the first one.
 Applicants do not contest the filing of the various exhibits, except for Exhibit MP‑3, the customer assistance centre’s notes of telephone calls from Paciucci.
 Insofar as all of the proposed examinations are concerned, Applicants oppose them.
4- APPLICABLE LAW
 In this regard, it is not sufficient that such proof be relevant for the merits of the case per se, but it must, even more importantly, be relevant specifically for the authorization analysis to be conducted in accordance with Article 575 C.C.P..
 Clearly, and as is often stated, the Court is not to conclude during the authorization phase as to the merits of the claim. It is exactly in this regard that allegations of fact by applicants are taken as being true and, further, that the burden of the applicant at authorization is one of logical demonstration and not of proof.
 Accordingly, there is a very limited purpose for a judge to allow contradictory evidence to be adduced at the authorization stage since, when faced with such proof, the general rule is to take the applicant’s allegations of fact as true, unless of course they appear improbable or manifestly inexact, thereby rendering the case frivolous, untenable or clearly unfounded.
 And given that only allegations of fact are to be taken as true, not inferences, conclusions, unverified hypothesis, legal arguments or opinions, it is only logical to conclude that the Court should be extremely reticent to authorize parties to adduce as so-called proof elements which are tantamount to such inferences, conclusions, hypothesis, arguments or opinions.
 It is also in keeping with the objective of authorization being a filtering system that relevant proof be limited to what is essential and indispensable, as well as proportional, to the authorization analysis.
 In other words, and to use expression of the Court of Appeal in Allstate du Canada, compagnie d’assurances v. Agostino, the judge in deciding on relevant proof should use moderation and prudence, applying a “couloir étroit”, a narrow corridor, that runs between the rigidity of enforcing the filtering process and a generous permissiveness that can mistakenly lead the judge to conduct an analysis of the merits of the claim.
 The Court understands from the case law that proof which is not simply contradictory in nature as regards the case on the merits, but which might possibly demonstrate on summary analysis that allegations of fact relating to essential and indispensable matters are improbable, manifestly inexact or simply false in the context of the authorization analysis, may be allowed by the judge exercising, with prudence and moderation, his or her discretion.
 In other words, the narrow corridor as described in Asselin may indeed be narrow, but it is definitely not inexistent.
A) The Sworn Statements
 The principal argument advanced against filing the proposed sworn statements is that the content thereof is intended to simply contradict the Applicants’ respective versions in relation to certain facts. The issue of hearsay is also raised.
 At the authorization phase, the Court should avoid the comparative analysis of all the contradictory proof, which is an exercise not in keeping with the filtering process. This certainly applies to proof which is embedded in a sworn statement. That which serves no essential and indispensable purpose at the authorization phase should not be filed.
 An example of this is found in the sworn statement of Claude Leblanc, from the dealership of Élite Chrysler Jeep Inc. of Sherbrooke, and this in relation to Applicant Champagne’s vehicle. Paragraphs 8 and 9 thereof read as follows:
8. Par conséquent, et contrairement à ce qui est allégué dans la Demande en autorisation, le dossier du Véhicule (pièce « A ») relève que Mme Champagne ne s’est jamais présentée chez Élite en Décembre 2014 pour de problèmes liés aux poignées de porte de son Véhicule.
9. Par ailleurs et contrairement à ce qui est spécifiquement allégué au paragraphe 58.7 de la Demande en autorisation, Mme Champagne n’a jamais été facturée et n’a jamais payé quelque montant que ce soit à Élite en lien avec le remplacement des poignées de porte de son Véhicule en décembre 2014.
 In the Court’s view, it is totally unnecessary and inappropriate at this stage to file such proof as it is neither essential nor indispensable for the authorization phase. It has no impact of the analysis of the Applicants’ legal syllogism in this case.
 Such proof, which may ultimately have some meaning for credibility or other purposes, should be left for the merits of the case in the event the class action is authorized.
 The reminder of Leblanc’s sworn statement would be acceptable if the exhibits themselves are allowed to be filed, since they assist in explaining the origin and completeness of those exhibits.
 Insofar as the sworn statement of Stuart Shaw is concerned, paragraph 4 is problematic, as the affiant qualifies Champagne’s allegations as “incomplete and contain certain factual inaccuracies”. That is only the opinion of the affiant, his conclusion on the facts, which is not appropriate proof at this stage.
 As for the first sentence of paragraph 5, it is useful and simply factual. But the second sentence is a conclusion drawn by the affiant based on hearsay, and hence is not appropriate proof at this stage. In the Court’s view, the same holds true for all of paragraph 6 of the Shaw’s sworn statement.
 Paragraph 7 thereof gives factual context to an exhibit. Similarly, paragraph 8. Although that paragraph indicates that payment of the mentioned repair was done “as a goodwill gesture”, the Court does not consider it necessary to strike it as the exhibit attached to the statement essentially says the same thing. So as long as the exhibits are authorized, so too are paragraphs 7 and 8.
 Finally, there is the sworn statement of Mikael Perrault, a technical advisor at the dealership of Applicant Paciucci, Trois Diamants Autos (1987) ltée of Mascouche.
 Paragraph 5 of his sworn statement, which states that certain allegations made by Paciucci “sont inexactes ou tout simplement fausses” is not appropriate proof at this stage. It is simply an opinion and a conclusion, not a fact per se.
 At paragraph 15 of the sworn statement, the affiant claims that “nous n’avons relevé aucun défaut ou problème mécanique avec les deux poignées de portes”, which is apparently confirmed by Exhibit MP-1.
 The affiant is not the technician who performed the inspection. He is simply adding an opinion and conclusions based on another person’s observations at a specific moment in time. In the Court’s view, that is also not appropriate proof at this stage. The words from “a inspecté” to “deux poignées de portes” should be struck from that paragraph.
 Similarly, all of paragraph 16 is comprised of opinion and mere conclusions as opposed to actual facts, and as such is not appropriate proof at the authorization stage.
 As for paragraph 17, the comment that Paciucci “est devenue fâchée” is neither essential nor indispensable in this case for the purposes of authorization.
 Paragraphs 19, 20 and 21 represent both argument and an attempt to enter self-serving proof, and as such are also inappropriate for authorization purposes.
 All other paragraphs in the various sworn statements which are not specifically analyzed herein satisfy, in the Court’s view, the criteria applicable to appropriate proof at the authorization stage.
B) The Exhibits
 As for the exhibits, and as mentioned above, Applicants only contest Exhibit MP‑3, which are the notes made by Respondent’s staff at its customer service centre in relation to two conversations with Applicant Paciucci.
 Quite frankly, the contestation is somewhat surprising given that at paragraph 39 of the Application for Authorization, Applicants state the following:
Defendant being summoned to communicate and file all notes and documents related to Plaintiff’s vehicle in general and the above Fiat Case Number in particular.
(Underlining that of the undersigned Judge)
 Essentially, all the documents Respondent seeks to file as Exhibits MP-1 to MP‑4 come within that demand for documents. This is particularly useful, as Applicant Paciucci has filed no documents emanating from the Respondent or any dealer.
 In the Cout’s view, Exhibit MP-3 is relevant and would possibly be useful for the authorization hearing and analysis. The same holds true for all the exhibits, and they should accordingly be authorized.
C) The Examinations
 For the purposes of analyzing demands to conduct examinations of petitioners in the authorization phase, it is useful to cite the summary of applicable criteria as set forth by Justice Suzanne Courchesne in Option Consommateurs v. Samsung Electronics Canada Inc., which reads as follows:
 Le Tribunal rappelle certains principes émis par les tribunaux et qui doivent être considérés lorsqu’une demande d’interrogatoire et de communication de documents pré-autorisation lui est soumise :
- le juge dispose d’un pouvoir discrétionnaire afin d’autoriser une preuve pertinente et appropriée ainsi que la tenue d’un interrogatoire du représentant, dans le cadre du processus d’autorisation;
- la vérification de la véracité des allégations de la demande relève du fond;
- le tribunal doit analyser la demande soumise à la lumière des enseignements récents de la Cour suprême et de la Cour d’appel sur l’autorisation des actions collectives et qui favorisent une interprétation et une application libérales des critères d’autorisation;
- à ce stade, la finalité de la demande se limite au seuil fixé par la Cour suprême, soit la démonstration d’une cause défendable; le tribunal doit se garder d’autoriser une preuve qui inclut davantage que ce qui est strictement nécessaire pour atteindre ce seuil;
- le tribunal doit se demander si la preuve requise l’aidera à déterminer si les critères d’autorisation sont respectés ou si elle permettra plutôt de déterminer si le recours est fondé; dans cette dernière hypothèse, la preuve n’est pas recevable à ce stade;
- la prudence est de mise dans l’analyse d’une demande de permission de produire une preuve appropriée; il s’agit de choisir une voie mitoyenne entre la rigidité et la permissivité;
- il doit être démontré que l’interrogatoire est approprié et pertinent dans les circonstances spécifiques et les faits propres du dossier, notamment en regard des allégations et du contenu de la demande d’autorisation;
- le fardeau de convaincre le tribunal de l’utilité et du caractère approprié de la preuve repose sur la partie qui la demande.
 Clearly, these criteria reflect those which are applicable to all proof to be filed during the authorization phase. However, the Court would add that the undesireable use of extensive examinations of petitioners prior to the authorization Hearing, which often extended beyond the authorization criteria and focussed on the merits of the claim, was one of the driving forces behind the modifications made to the class action procedure with a view to reinforcing that it is but a filtering process.
 In other words, although prudence should be a governing principle in relation to all decisions made in the “couloir étroit” as to proof in the authorization phase, an extra dose of prudence is warranted in relation to demands for examinations at that stage.
 In this regard, the Court considers it insufficient for a party to simply state that the examination will be limited to matters relating to the authorization criteria of Article 574 C.C.Q. More details must be provided so as to enable the Court to assess the precise evidentiary objectives of the specific subjects, if not actual questions, which are envisaged. As well, a more reasoned time projection for conducting same should be provided, beyond the typical response of “about one hour”.
 Moreover, in the present case, the primary objective of the proposed examinations is said to be related to credibility. In this case, the Court does not consider that the issue of credibility, usually one not forming part of the filtering process, justifies the proposed examinations.
 Ultimately, the lack of specifics and details regarding the proposed examinations of the two applicants is fatal, as the Court is unable to properly assess whether the applicable criteria are met. The Court will accordingly not authorize them.
FOR THESE REASONS, THE COURT:
GRANTS in part the Amended Application for Leave to Adduce Evidence and Depose the Class Applicants;
AUTHORIZES Respondent FCA Canada Inc. to file in proof the following documents:
a) The sworn statement of Mikael Perrault:
(i) except for paragraphs 5, 16, 19, 20 and 21 which are excluded in their totality; and
(ii) as regards the following paragraphs, they are authorized subject to the stipulated modification;
Paragraph 15: The following words are removed: “a inspecté le véhicule et nous avons relevé aucun défaut ou problème mécanique avec les deux poignées de portes » are struck and excluded;
Paragraph 17: The following words are removed: “est devenue fâchée” are stuck and excluded;
b) Exhibits MP-1 to MP-4 of the Perrault sworn statement;
c) The sworn statement of Claude Leblanc, except for paragraphs 8 and 9 which are excluded;
d) Exhibit “A” of the Leblanc sworn statement;
e) The sworn statement of Stuart Shaw, except for paragraph 4 which is excluded, and the second sentence of paragraph 5, reading “At this time, Ms. Champagne had not yet brought her Vehicle into a dealership to have it inspected.”, which is stuck from the paragraph and excluded;
DISMISSES the remaining demands;
THE WHOLE with judicial costs to follow suit.
Gary D.D. Morrison, J.S.C.
Mtre. David Assor
Lex Group Inc.
Attorneys for Plaintiffs
Mtre. Margaret Weltrowska
Mtre. Erica Shadeed
Attorneys for Respondent
Dates of Hearings :
April 8 and May 24, 2019
 The Hearing on April 8, 2019, was suspended so as to allow Applicants to consider amending anew their demand in authorization. The Re-Amended version was thereafter issued, dated April 18, 2019.
 Exhibit D-1.
 Exhibit D-2.
 Exhibit D-3.