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On February 13, 2026, the Court of Appeal of Quebec rendered its decision in Gauthier v Bombardier, 2026 QCCA 148, in which it clarified the methodology applicable to the criterion set out in para 575(2) of the Code of Civil Procedure ("C.C.P.").
The Court of Appeal held that when a plaintiff invokes multiple legal bases in support of a single claim, the role of the authorizing judge is limited to determining whether at least one of those legal basis appears to justify the conclusion sought. The judge must refrain from examining the other legal bases absent "exceptional circumstances".
Analysis
In Gauthier v Bombardier, the plaintiff had listed, among the "conclusions sought" in the proposed class action, declaratory conclusions relating to each of the legal bases alleged. As a result, to determine whether the "facts alleged appear to justify the conclusions sought" under article 575(2) C.C.P., the authorizing judge examined each legal basis individually.
The Court of Appeal disagreed. It explained that the plaintiff's drafting [our translation] "unnecessarily obscures what is truly being sought at the authorization stage". The Court of Appeal therefore simplified the list of conclusions sought by focusing on what was ultimately sought by the plaintiff, i.e. the compensatory and punitive damages.
In doing so, the Court of Appeal stated that authorizing judges should generally refrain from examining each legal basis relied upon in support of a single claim where at least one of those bases is arguable:
[our translation] [36] In short, when an application for authorization advances a claim based on multiple legal bases, the task of the authorizing judge under section 575(2) C.C.P. is limited to determining whether, in light of the facts alleged, at least one of those bases is arguable (to use the wording of section 575(2) C.C.P., whether "the facts alleged appear to justify the conclusions sought"). When it is the case, and the other criteria set out in section 575 C.C.P. are met, the authorizing judge should generally refrain from ruling on the other legal bases or legal arguments invoked in support of the same claim. [...]
The Court of Appeal distinguished some of its prior decisions. It acknowledged that it had previously declined to intervene in cases where authorizing judges had authorized certain legal bases while dismissing others (e.g. Delorme and Association pour la protection automobile). According to the Court, since the grounds of appeal in those cases did not concern whether an authorizing judge should rule on all legal bases invoked in support of a single claim, those decisions did not constitute relevant precedents on that specific issue.
The Court of Appeal also distinguished Salko. The issue on appeal in that case was whether an authorizing judge could rule on a specific question of law—namely, the applicability of the Consumer Protection Act—but in a context where this question was determinative for a distinct claim, namely the claim for punitive damages. In other words, the authorizing judge was justified in that case to examine the legal basis relating to the Consumer Protection Act, because it was the sole basis raised in support of the claim for punitive damages.
Exceptions
Despite the foregoing, the Court of Appeal maintained that authorizing judges must, in certain circumstances, conduct a thorough analysis of each legal basis, for example:
- When the criterion set out in section 575(2) C.C.P. is not met because all the legal bases invoked are bound to fail (para 21);
- When the claim for each legal basis raised is distinct. This would be the case, for example, if one legal basis is invoked in support of a claim for compensatory damages, while another legal basis is invoked in support of a claim for punitive damages (paras 29, 33);
- When, [our translation] "for instance, exceptional circumstances reveal the existence of compelling reasons - with regard to the guiding principles of procedure," which the Court of Appeal does not define (para 36).
In addition, the Court of Appeal reiterated that when authorization is sought against multiple defendants, the plaintiff must demonstrate the existence of an arguable case with respect to each of them (para 20).
Conclusion
While analyzing each legal basis allowed the parties to circumscribe the arguments relevant to the litigation, delimiting the issues, and promoting the settlement of class actions, the new methodology established in Gauthier defers the analysis of legal bases to the merits.
Although this approach has the potential to simplify the authorization stage in certain cases, it may in others give rise to a new debate, namely determining which legal bases the authorizing judge is entitled to analyze.
This approach also risks complicating the post-authorization discovery process by opening the door to examinations or requests for documents in connection with legal bases that are bound to fail. Hence the importance of the Court of Appeal's comment at the end of para 36: [our translation] "the judge may always, during the course of the class action, exercise the case management powers provided for in article 158 C.C.P., including the power to better define the issues in dispute, and, at a party's request, take any measure conducive to the orderly conduct of the proceeding (article 169 C.C.P.)".
It remains to be seen how this decision will be interpreted by the courts and whether this approach will become the prevailing norm in Quebec.
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