Executive Summary: Key Legal and Evidentiary Issues

• Whether the defendants should be permitted, under article 574 of the Code of Civil Procedure, to file "appropriate evidence" before the authorization hearing of a proposed class action.
• The proposed class action alleges that the defendants illegally charged certain hypothecary debtors professional fees of lawyers or notaries, contrary to articles 2667, 2762 and 2779 of the Civil Code of Québec and the Consumer Protection Act.
• Appropriate evidence at the authorization stage must be essential, indispensable and limited, fill a factual gap, concern neutral and objective facts, avoid debating the truth of the allegations, and be proportionate.
• Evidence of the defendants' internal policies and procedures was refused because it either contradicted the allegations of the application or was irrelevant at the authorization stage.
• Evidence that only three debtors, including the plaintiff, were charged professional fees was authorized as precise, limited and proportionate, since it addresses the class-size criterion in article 575(3) C.p.c.
• Reimbursement evidence was refused as premature, although the admission that an amount was reimbursed to the plaintiff was accepted at the hearing.

Facts of the case

Grazia Triunfo seeks to institute a class action against Groupe Services Partagés Desjardins inc. and the Caisse populaire Desjardins Canadienne et Italienne, alleging that the defendants illegally required certain debtors to pay professional fees incurred in the context of hypothecary recourses. According to the plaintiff, this practice has existed for many years. The proposed action covers two groups: a principal group of natural and private-law legal persons, and a consumer group of natural persons, in each case persons who received a prior notice of the exercise of a hypothecary right from Groupe Services Partagés Desjardins inc. and from whom professional fees or illegitimate charges were demanded, for the period from March 27, 2022 until the date of the final judgment on the merits. In anticipation of the authorization debate, the defendants sought leave to file appropriate evidence consisting of a sworn declaration and two exhibits made up of extracts of their internal procedures relevant to hypothecary recourses.

Legal provisions and rules at issue

The plaintiff relies principally on articles 2667, 2762 and 2779 of the Civil Code of Québec, arguing that the charges mentioned in these provisions cannot include the professional fees of lawyers or notaries, that this prohibition is a matter of public order, and that the defendants circumvent it by claiming such fees when exercising or modifying a hypothecary recourse. She also invokes the Consumer Protection Act, contending that these charges constitute abusive, excessive or disproportionate obligations, and she claims reimbursement of the fees illegally paid as well as punitive damages. The procedural framework governing the defendants' request is article 574 C.p.c., which allows the court to permit the presentation of appropriate evidence. In principle, only evidence that is "essential, indispensable and limited" is permitted, given that the authorization threshold for a class action is a mere possibility of success on the merits. Drawing on consistent case law, the Court identified five cumulative criteria: the burden rests on the party seeking to introduce the evidence and the court is not bound by any agreement between the parties; the evidence must fill a factual gap; it must not be opinion evidence but must concern neutral and objective facts; it must not provoke a debate on the truth, scope or probative force of the allegations, unless it manifestly demonstrates the falsity of certain allegations or the Superior Court's lack of jurisdiction; and it must be proportionate.

The court's reasoning and analysis

Justice Lukasz Granosik examined each element of the proposed evidence separately. Regarding the internal policies or procedures, the Court held that this evidence either sought to contradict the allegations of the application or had no relevance to the debate. The defendants cannot, at the authorization stage, attempt to debate the merits or truth of the plaintiff's allegations on the pretext that certain policies or procedures are at issue; moreover, the application for authorization does not rest on any allegation that the defendants acted in accordance with a particular policy or procedure, but rather alleges that they actually engaged in the impugned conduct. That evidence was therefore not authorized. As for the contention that the group would ultimately include only three members, the sworn declaration of a management employee indicated that a review of all files having been the subject of a prior notice of the exercise of a hypothecary right between March 27, 2022 and December 19, 2025 revealed that only three debtors, including the plaintiff, were charged professional fees of lawyers or notaries. The plaintiff attacked the credibility of this declaration because its methodology was not specified, but the Court found that objection irrelevant at this stage: the defendants must be able to contest whether the criterion of article 575(3) C.p.c. is satisfied, and their possible eventual failure is not a factor in deciding whether the proposed evidence is appropriate. This evidence was found to be precise, limited and proportionate, and paragraphs 5 to 8 of the sworn declaration were authorized. Finally, concerning the reimbursements made or contemplated, the Court noted that at the authorization stage the allegations of the application must be taken as true and the court must refrain from definitively deciding disputed facts. Admitting this evidence would risk a debate that is premature, useless and inadmissible at this stage, particularly since the application targets all charges allegedly collected illegally and is not limited to lawyers' or notaries' fees, and since the action also includes a claim for punitive damages that reimbursement alone would not extinguish. That said, it was admitted at the hearing that an amount was reimbursed to the plaintiff, and this admission was authorized and recorded in the minutes of the hearing.

Ruling and overall outcome

By judgment dated June 29, 2026, the Superior Court granted in part the defendants' application for permission to present appropriate evidence, authorizing the filing in evidence of paragraphs 5 to 8 of the sworn declaration of Me Caroline Fournier, with legal costs to follow. The defendants were thus the partially successful parties on this interlocutory application, obtaining leave to file the portion of their evidence addressing the size of the proposed class, while the remainder of their proposed evidence was refused. No monetary award was ordered in this judgment; costs were simply reserved to follow the outcome of the proceedings, so no exact amount can be determined.