Executive Summary: Key Legal and Evidentiary Issues

• Whether the respondents should be permitted to adduce relevant evidence (Exhibits R-2, R-3 and R-4) at the authorization stage of a proposed class action, under article 574(3) of the Code of Civil Procedure (C.p.c.).
• Evidence at the authorization stage must be essential, indispensable, and limited to what shows without contest that the alleged facts are implausible or false, and must concern neutral, objective facts rather than contested questions reserved for the merits.
• Whether the plaintiff should be authorized, under articles 585 and 206 C.p.c., to amend his application for authorization, including redefining the vehicle models and years covered by the proposed Group.
• Whether the removal of paragraph 45 of the original application amounted to an improper retraction of a judicial admission regarding the technical cause of turbocharger failures.
• Admissibility of allegations and of Exhibit P-20 concerning a without-prejudice out-of-court settlement reached in a U.S. proceeding (Kimball et al. v. Volkswagen Group of America Inc. et al.).
• Portions of the sworn declarations addressing contested matters, such as the turbo classification terminology and the "linkage design," were excluded as belonging to the debate on the merits.

Facts of the case

On January 24, 2023, Gabriel Haviernick filed an application for authorization to institute a class action against Volkswagen Group Canada Inc. and Audi Canada Inc. before the Superior Court of Québec (Class Actions Chamber). The proposed class action seeks compensatory and punitive damages arising from alleged latent defects and manufacturing defects in the turbocharger of the engines of certain vehicles sold by the respondents. On October 31, 2025, the respondents notified a first application for leave to adduce relevant evidence, seeking to file Exhibit R-2 (data from the Association pour la protection des automobilistes (APA) for Québec) and Exhibit R-3 (a first sworn declaration of Noel Joyce). On December 1, 2025, following receipt of that application, the plaintiff notified an application to amend his application for authorization, notably to redefine the Group to cover vehicle models and years differing from the original definition. On March 13, 2026, the respondents notified a second application for leave to adduce evidence, seeking to file Exhibit R-4, an additional sworn declaration of Noel Joyce. The plaintiff partially contested the evidence applications (declarations R-3 and R-4), while the respondents partially contested the amendments (paragraphs 45, 49, 81.9 and 81.10 and the addition of Exhibits P-3.2 to P-3.10 and P-20). The parties proceeded by written representations, and Justice Marie-Christine Hivon rendered judgment on June 30, 2026.

Provisions and clauses at issue

The evidence applications were governed by article 574(3) C.p.c., which allows a party to seek permission to submit relevant evidence for the authorization debate, assessed against the authorization criteria of article 575 C.p.c. The amendment application was governed by article 585 C.p.c., which requires court authorization for a class action representative to amend a pleading, applying the criteria of article 206 C.p.c.: the amendments must not be contrary to the interests of justice, must not unduly delay the proceeding, and must not result in an entirely new demand unrelated to the original one. Also at issue were paragraphs 44 to 46 and 49 of the original application, in which the plaintiff referred to a July 18, 2014 dealer information notice from Volkswagen Group of America extending the limited turbocharger warranty to 10 years or 120,000 miles (192,000 km) for certain 2012–2013 Volkswagen Passat TDI clean-diesel vehicles, and stated that "the technical cause for the turbocharger failures is not the same" — language the respondents characterized as a judicial admission. Finally, the proposed Exhibit P-20, a settlement agreement from the American case Kimball et al. v. Volkswagen Group of America Inc. et al., contained a clause (page 29, article IX.B) providing that the agreement was concluded without prejudice and without admission of liability, and that no document of the agreement is admissible in evidence in any judicial or other proceeding.

The court's reasoning and analysis

Drawing on Ward c. Procureur général du Canada and recent Court of Appeal guidance in Nashen c. Station Mont-Tremblant, the Court reiterated that evidence permitted at the authorization stage must be relevant and useful to verifying the article 575 C.p.c. criteria, and must be essential, indispensable, and limited to what demonstrates without contest that the alleged facts are implausible or false. Sworn declarations may qualify, but only if they address neutral and objective facts rather than controversies requiring an assessment of evidence on the merits. Applying these principles, the Court permitted Exhibit R-2 (uncontested by the plaintiff) as relevant to the Group definition. For Exhibit R-3, it permitted the information in paragraphs 5 and 7 to 16 as completing the factual picture, but excluded paragraph 6, which concerned a contested question rather than a neutral fact. For Exhibit R-4, the Court excluded paragraphs 4 and 5 (regarding the IS12, IS20 and IS38 turbo classification terminology) and paragraphs 6 to 9 (regarding the "linkage design"), finding they did not establish without contest the implausibility or falsity of the amended application's allegations; paragraphs 10 and 11 were refused for the same reasons as paragraph 6 of R-3, while paragraph 12 — stating that no vehicles of certain models and years were sold in Québec — was permitted as neutral, objective and relevant to the Group definition. Exhibits P-3.1 to P-3.10, proposed by the plaintiff in reaction to the excluded turbo-terminology allegations, were likewise refused. On the amendments, the Court recalled that amendment is the rule and not the exception. It was not convinced that the original paragraph 45 constituted a judicial admission, and allowed the changes to paragraphs 45 and 49 as complementing the removal of diesel-engine vehicles from the proposed Group, while noting that the original application remains in the court record. However, the Court refused the addition of sub-paragraphs 81.9 and 81.10 and Exhibit P-20 concerning the American settlement, finding them of no utility or relevance to the authorization criteria.

Ruling and overall outcome

The Court granted in part the respondents' first application for leave to adduce evidence, permitting Exhibit R-2 and a signed version of the Noel Joyce declaration (R-3) only as to paragraphs 1 to 5 and 7 to 17; granted in part their second application, permitting the second Joyce declaration (R-4) only as to paragraphs 1 to 3, 12 and 13; and granted in part the plaintiff's amendment application, authorizing the amended application for authorization except for sub-paragraphs 81.9 and 81.10 and Exhibits P-20 and P-3.1 to P-3.10. The result is a mixed outcome in which each side succeeded in part: the respondents obtained permission to file portions of their evidence, and the plaintiff obtained leave to file most of his amended application. The judgment concludes "with legal costs" ("avec les frais de justice") at both dispositive stages, but it does not specify in whose favour those costs run, and no monetary amount of any award or costs can be determined from the decision.