Executive Summary: Key legal and evidentiary issues

• Determination of whether misleading marketing claims about product recyclability justify authorizing a class action

• Application of the threshold under article 575(2) of the Code of Civil Procedure for authorizing a class action

• Assessment of whether allegations supported a cause of action under both provincial and federal consumer protection statutes

• Evaluation of territorial scope for the class action (Québec only vs. national)

• Consideration of whether factual allegations were sufficiently precise to sustain national certification

• Judicial discretion in framing the collective questions and remedies to be adjudicated

Facts of the case

Sonia Cohen sought authorization to launch a class action against various major retailers, including Dollarama, alleging that they had falsely represented certain reusable shopping bags as recyclable. According to Cohen, these bags, despite being advertised and labelled as recyclable, were not actually recyclable in Québec and would end up in landfills, contributing to environmental harm. The proposed class consisted of Québec consumers who had purchased these bags based on misleading representations.

The claim invoked several legal grounds: the Québec Consumer Protection Act, the Competition Act, and relevant provisions of the Civil Code of Québec. Cohen alleged she had purchased hundreds of these bags over the years, relying on the representations of recyclability made on the bags themselves and on retailers’ websites. The Superior Court partially authorized the class action, allowing claims under the Consumer Protection Act and the Civil Code, but declined to authorize claims under the Competition Act on the grounds that no financial loss or damage had been sufficiently demonstrated. The court also limited the geographic scope of the action to Québec.

Arguments on appeal

Cohen appealed two key aspects of the judgment. First, she argued that the judge had erred in refusing to authorize the claim under the Competition Act, particularly under articles 36 and 52, given that her pleadings alleged she had spent substantial sums on the misleadingly marketed bags. Second, she challenged the limitation of the class action to Québec, seeking national certification for retailers headquartered in Québec.

The respondents defended the judgment, arguing that the Competition Act claim lacked proper factual grounding, and that the pleadings concerning sales and marketing practices outside Québec were vague, unsupported, or speculative.

Outcome of the appeal

The Court of Appeal allowed the appeal in part. It ruled that the allegations in Cohen’s pleading, particularly those stating she had paid hundreds of dollars based on allegedly false representations, were sufficient to support a potential claim under the Competition Act. Thus, the Court authorized the class action to proceed on that additional legal basis.

However, the Court upheld the trial judge’s decision to limit the action to Québec. The Court found that the allegations regarding the situation outside Québec were too vague and unsupported by sufficient evidence to meet the authorization threshold under article 575(2) C.p.c. National certification was therefore not warranted.

The Court also clarified and reformulated the collective issues and remedies to be addressed in the class action, including potential compensatory and punitive damages, and injunctive relief to prevent continued marketing of the bags as recyclable. The appeal was granted in part, with costs.