Executive Summary: Key Legal and Evidentiary Issues

• Scope of “preuve appropriée” under article 574 C.p.c. at the authorization stage of a Québec class action, and the need to balance proportionality with the summary nature of the process.
• Admissibility of a sworn declaration from a corporate representative (Pauperio) limited to neutral, contextual and regulatory facts, excluding contested or unnecessary portions.
• Usefulness and necessity of exhibits relating to tequila regulatory standards and certifications (NOM-006, 100% Agave, certificates of authenticity) to understand the alleged misrepresentation.
• Effect of the plaintiff’s admission regarding CRT 100% Agave certification on the exclusion of certain defense exhibits as redundant or non-essential.
• Permissible scope of an examination of the proposed class representative focused narrowly on the origin and knowledge of laboratory analysis reports filed as Exhibit P-2.
• Partial success of the defendant’s motion, with leave granted in part to file evidence and conduct a short oral examination, and costs awarded without any specific monetary amount being set out.

Factual background

The proposed class action is brought by Dan-Mirvicko Durandisse against Diageo Canada Inc. in the Québec Superior Court, Class Actions Chamber. The plaintiff seeks authorization to institute a class action and to be appointed as representative of a group defined as all natural persons residing in Québec who purchased a bottle of Don Julio or Casamigos tequila since 20 May 2022. The core allegation is that Diageo marketed, distributed and sold tequila bottles bearing the labels “Tequila 100 % Agave Azul” or “100 % d’Agave” even though the products allegedly do not contain only pure tequila. According to the plaintiff, this constitutes misleading commercial practice contrary to sections 219, 221 and 228 of the Québec Consumer Protection Act (Loi sur la protection du consommateur, LPC). The case is still at the authorization (certification) stage, and the merits of the alleged misrepresentation and damages have not yet been adjudicated. The judgment in question addresses only a procedural application by the defendant to adduce “relevant evidence” and to examine the proposed class representative.

Procedural posture and nature of the motion

Diageo applied for leave under article 574, paragraph 3 of the Code of Civil Procedure (C.p.c.) to file “appropriate evidence” and to examine the plaintiff at the authorization stage. The evidence sought included a sworn declaration by Mr. Wellington Pasiani Pauperio, together with five exhibits: the Canada–United States–Mexico Agreement (R-1), an English rendition of the Official Mexican Standard NOM-006-SCFI-2012 on tequila (R-2), certain Mexican certification documents (R-3 and R-3A), and a certificate of authenticity for tequila export (R-4). In addition, Diageo asked to examine the plaintiff orally for up to 75 minutes on three topics: the circumstances of his tequila purchase, the circumstances in which he agreed to act as representative, and matters relating to laboratory analysis reports and a table filed as Exhibit P-2. The plaintiff accepted that some limited portions of the declaration and some exhibits (R-1 and R-2) could be filed, but otherwise opposed the application, including the broader examination and the filing of additional defense material.

Legal framework for appropriate evidence at authorization

The Court begins by recalling article 574 C.p.c., which states that an application for authorization of a class action may only be contested orally and that the court may allow the presentation of “relevant evidence.” Jurisprudence, notably Vivier c. Air Canada, sets out guiding principles. The production of appropriate evidence requires court authorization and is not governed simply by party agreement. The court must find a balance between rigidity and permissiveness, mindful that authorization is meant to be a summary process. Evidence must be strictly limited and proportionate to what is essential to assess the four criteria at article 575 C.p.c., and must respect proportionality and reasonable conduct of proceedings under articles 18 and 19. The court is cautioned not to turn authorization into a preliminary trial on the merits. Allegations in the authorization application are presumed true, and the court’s role is to analyze the legal syllogism rather than to be an ultimate fact-finder at this stage. When the proposed evidence takes the form of sworn declarations, it must concern neutral, objective facts and not delve into contested matters that would require weighing credibility or probative force. The defendant bears the burden of showing the usefulness and relevance of any proposed evidence.

Application of the evidentiary principles to the Pauperio declaration

Applying those principles, the Court parses the Pauperio declaration paragraph by paragraph. It authorizes the filing of paragraphs 1 to 8, the second sentence of paragraph 9, paragraphs 10 to 14, 16 to 27, and 31 to 34. Those passages are accepted because they complete incomplete allegations in the authorization application and explain the nature of Diageo’s activities and the regulatory context in which the company and its affiliates operate. This background, which the plaintiff’s application left largely unaddressed, is viewed as helpful to understanding the factual and regulatory environment relevant for assessing the article 575 C.p.c. criteria. By contrast, paragraphs 28 and 29 of the declaration, linked to exhibits R-3 and R-3A, are held to be unnecessary in light of a key admission by the plaintiff: he admits that Diageo or its related companies held certification “100 % Agave” issued by the Consejo Regulador del Tequila (CRT) for the products and period at issue, and that the particular bottle he purchased was also CRT-certified as 100% Agave. As a result of this admission, the Court finds that further proof on that point would be redundant and not essential within the confines of article 574. Paragraph 30 is likewise excluded as not useful in light of the same admission. Paragraph 34 and exhibit R-4 are admitted because they supplement and clarify a photographic exhibit (P-3) filed in support of the authorization application, providing a more complete evidentiary picture without venturing into contested territory.

Regulatory context of tequila and product certification

The decision touches on, but does not fully reproduce, the content of the regulatory materials. The exhibits include the Canada–United States–Mexico Agreement (R-1) and a courtesy English translation of the Official Mexican Standard NOM-006-SCFI-2012 on tequila specifications (R-2). While the Court does not conduct a detailed analysis of these instruments, their admission as “appropriate evidence” serves to situate Diageo’s operations within an international and Mexican regulatory framework governing what may be labeled tequila, and in particular “100% Agave.” The CRT certifications (R-3 and R-3A) are not admitted because the plaintiff’s admission makes them superfluous; however, the certificate of authenticity for export (R-4) is allowed to complement the photographic proof. These materials deal with product standards and certifications rather than private contractual or insurance policy wording. There is no discussion of any insurance policy terms or clauses, and no policy language forms part of the legal issues addressed in this judgment.

Legal framework for examining the proposed representative

The Court then turns to the request to examine the plaintiff. Relying on Dumlao c. Fido Solutions inc., it summarizes the principles for authorizing such examinations at the authorization stage. Any examination of the proposed representative must be essential for evaluating the article 575 C.p.c. criteria and must respect proportionality and reasonable conduct. An examination aimed at pre-testing the truth of allegations or probing the quality of the plaintiff’s supporting evidence is generally improper at this stage. The rule in article 228(3) C.p.c., requiring witnesses to answer under reserve notwithstanding objections based on relevance, also applies. Where an examination is allowed without the judge present, it must proceed under article 295 C.p.c., which entails mandatory filing of the transcript; it does not proceed under the usual discovery provisions (articles 221 and 226 C.p.c.). As with evidence, the defendant bears the burden of demonstrating the necessity of any examination.

Evaluation of the proposed examination topics

Diageo sought leave to examine the plaintiff for up to 75 minutes on three areas: the circumstances of his tequila purchase (linked to Exhibit P-3), the circumstances in which he agreed to act as representative, and the results and background of laboratory analyses and a table filed as Exhibit P-2. The Court rejects the first topic as not essential to article 575 C.p.c. Its true purpose would be to explore the plaintiff’s credibility and the truth of his allegation that he bought his bottle without prior knowledge of the alleged unlawful practices. Testing the veracity of such allegations, the Court notes, belongs to the merits phase, not to authorization. The second topic, relating to the circumstances in which the plaintiff accepted to act as representative and any potential attack on his fitness, is also refused. The Court observes that interrogations on that type of subject are generally prohibited by prior case law and are unnecessary to assess the fourth criterion of article 575 C.p.c. concerning the representative’s ability to properly represent the class. The third topic fares differently. Exhibit P-2, which is invoked at paragraph 13 of the authorization application, consists of a U.S. class action complaint filed in the Eastern District of New York (against Diageo North America Inc.) and a set of laboratory analysis reports and a technical table produced by Eurofins Analytics. The analyses purport to measure ethanol derived from sugar cane or other non-agave sources in products labeled “100% agave” tequila. The Court finds that, in context, it is unclear how the laboratory reports and the table are connected to the U.S. proceeding identified by case number and whether they are appropriately linked to the allegations made in the Québec authorization application. Clarifying that connection is considered essential to assessing at least one of the article 575 C.p.c. criteria, notably whether the alleged facts appear to justify the conclusions sought. For that limited purpose, the Court authorizes a short oral examination of the plaintiff.

Scope and modality of the authorized examination

The Court confines the defendant’s examination rights very narrowly. It allows an in-person oral examination of the plaintiff for a maximum duration of 25 minutes, to take place at a mutually agreed time and location within 25 days of the judgment. The examination must focus exclusively on the Eurofins laboratory reports and the related table filed as Exhibit P-2, specifically on their origin and how the plaintiff became aware of them. The Court explicitly prohibits questioning the plaintiff about the scientific content of the reports or the table, as he is not their author and such questioning would cross the line into evidence evaluation. Given the narrow topic and short duration, the Court concludes that an oral examination, as opposed to written questions, better aligns with the procedural guiding principles in this context.

Outcome, successful party and monetary aspect

In its dispositive section, the Court partly grants Diageo’s “Application for Leave to Adduce Relevant Evidence and for Leave to Examine the Class Representative.” It authorizes Diageo to file a trimmed-down version of the Pauperio declaration, restricted to specified paragraphs that address neutral factual background and regulatory context, and to submit exhibits R-1, R-2 and R-4 as appropriate evidence. It also grants leave to conduct a strictly limited 25-minute oral examination of the plaintiff confined to the provenance and knowledge of the laboratory analysis materials in Exhibit P-2. Other requested evidence and examination topics are refused as unnecessary, disproportionate or inconsistent with the summary nature of the authorization stage. On this interlocutory motion, Diageo Canada Inc. emerges as the successful party in part, having obtained meaningful but bounded evidentiary and examination rights. The judgment awards “frais de justice” (costs of justice), but does not specify any dollar figure. Accordingly, while costs are granted, the exact monetary amount of costs—and any damages or other monetary award—cannot be determined from this decision.