Case information

Civil procedure — Class action — Exception to dismiss — Res judicata — Abuse of process —Can the public order and social policy objectives of the substantive law or res judicata be modulated in the class action authorization process in order to promote repeated access to justice? — Does the guiding principle of proportionality place a burden on class applicants to demonstrate that a request for repeated access to justice is not the result of prior and unnecessary waste of judicial resources? — Civil code of Québec, art. 2848 — Code of Civil Procedure, CQLR c C 25.01, art. 51 and 168.

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In 2016, the respondent Mr. Sylvain Gaudette filed an application to authorize a class action against the applicants, Whirlpool Canada LP and Whirlpool Corporation alleging flaws in the design of front loaded Whirlpool Washing Machines, which cause the accumulation of mold leading to mildew odours. The applicants filed an exception to dismiss the application on the ground of res judicata because an identical application to authorize a class action had been previously filed in 2009 by Mr. Sylvain Lambert and definitely adjudicated in 2015 when the Supreme Court of Canada denied leave to appeal. In that prior case, Mr. Lambert’s authorization was dismissed because it failed to meet all of the conditions established in the Code of civil procedure. The personal claim of Mr. Lambert was prescribed under the Civil Code of Quebec, which made him an inadequate representative for the proposed group. In this present case, the applicants also filed an application to declare the application to authorize a class action of Mr. Gaudette abusive because it engages unnecessary judicial resources. The exception to dismiss on ground of res judicata and the application to declare an application to authorize a class action abusive were both dismissed by the Superior Court. The Court of Appeal dismissed the appeal.