Supreme Court of Canada

Appeals Heard: November 7, 2018 Judgment Rendered: June 7, 2019 Docket: 37855

Between: L'Oratoire Saint‑Joseph du Mont‑Royal Appellant and J.J. Respondent — and — Province canadienne de la Congrégation de Sainte‑Croix Intervener

And Between: Province canadienne de la Congrégation de Sainte‑Croix Appellant and J.J. Respondent — and — L'Oratoire Saint‑Joseph du Mont‑Royal Intervener

Indexed as: L'Oratoire Saint‑Joseph du Mont‑Royal v. J.J.

2019 SCC 35

File No.: 37855.

2018: November 7; 2019: June 7.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

on appeal from the court of appeal for quebec

Reasons for Judgment: (paras. 1 to 83) Brown J. (Abella, Moldaver, Karakatsanis and Martin JJ. concurring)

Reasons Dissenting in Part: (paras. 84 to 189) Gascon J. (Wagner C.J. and Rowe J. concurring)

Dissenting Reasons: (paras. 190 to 287) Côté J.

Headnotes

Civil procedure — Class action — Authorization to institute class action — Conditions for authorization of action — Application for authorization to institute class action for damages for injuries caused by sexual assaults allegedly committed by members of religious community — Superior Court dismissing application for authorization — Court of Appeal reversing judgment and authorizing class action — Whether Court of Appeal's intervention in Superior Court's decision was warranted — Whether Court of Appeal's decision authorizing institution of class action is tainted by error justifying review — Code of Civil Procedure, CQLR, c. C‑25.01, art. 575.

Prescription — Civil liability — Applicable period for instituting action for damages for bodily injury resulting from act which could constitute criminal offence — Sexual assaults being alleged against members, since deceased, of religious congregation — Application for authorization to institute class action being filed against congregation and against religious institution whose board of directors is composed of members of that congregation on basis of their own fault and of act of another person — Whether three‑year period provided for in art. 2926.1 para. 2 of Civil Code for instituting action in case in which author of act has died results in forfeiture of remedy — Whether that period begins running at time of death of author of act or on date victim becomes aware that injury suffered is attributable to that act — Whether that period applies to every action instituted in relation to that act — Civil Code of Québec, art. 2926.1.

J alleged that he had been sexually abused by two members, since deceased, of the religious community known as the Congregation of Holy Cross when he was attending Notre‑Dame‑des‑Neiges elementary school and when he was an altar boy at St. Joseph's Oratory of Mount Royal. He applied for authorization to institute a class action on behalf of victims of sexual assaults that were alleged to have been committed in various institutions in Quebec by brothers and fathers who were members of that religious community. As defendants, J designated Province canadienne de la Congrégation de Sainte-Croix ("Congregation") and Oratoire Saint‑Joseph du Mont-Royal ("Oratory"). The Congregation contested the application for authorization on the basis that it could not be held liable for acts that were for the most part alleged to have been committed before it was incorporated, and the Oratory did so on the basis that it had no connection with the religious community known as the Congregation of Holy Cross. In addition, both the Congregation and the Oratory were of the view that J's personal action was irreparably forfeit as a result of art. 2926.1 para. 2 of the Civil Code of Québec (" C.C.Q. "). The Superior Court found that none of the conditions for authorization set out in art. 575 of the Code of Civil Procedure (" C.C.P. ") were met and refused to authorize the institution of the class action. The Court of Appeal reversed that judgment and authorized the institution of the class action against the Congregation and the Oratory.

Held (Wagner C.J. and Gascon and Rowe JJ. dissenting in part and Côté J. dissenting): The appeals should be dismissed.

Per Abella, Moldaver, Karakatsanis, Brown and Martin JJ.: The Court of Appeal's decision to authorize the institution of the class action against both the Congregation and the Oratory is not tainted by an error that justifies a review, and there is nothing that would justify the Court in reversing that decision. The judgment in which the Superior Court denied authorization to institute a class action against both the Congregation and the Oratory is tainted by numerous errors, of fact and of law, in relation to all the conditions of art. 575 C.C.P. It was therefore open to the Court of Appeal to intervene and to substitute its own assessment with regard to those conditions for that of the Superior Court judge. Finally, Gascon J.'s analysis on the subject of art. 2926.1 C.C.Q. is agreed with: J's personal action is neither forfeit nor prescribed. The second paragraph of that article does not create a term for forfeiture ( délai de déchéance ).

Article 571 para. 1 C.C.P. defines the class action as a procedural means enabling a person who is a member of a class of persons to sue on behalf of all the members of the class and to represent the class. Article 574 para. 1 C.C.P. provides that prior authorization of a court is required for a person to institute a class action. At the authorization stage, the court plays a screening role and must simply ensure that the applicant meets the four conditions of art. 575 C.C.P. If the conditions are met, the class action must be authorized. The court will consider the merits of the case later. This means that the application judge is ruling on a purely procedural question. The Court has given a broad interpretation and application to the conditions of art. 575 C.C.P.

The Court of Appeal's power to intervene is limited when it hears an appeal from a decision on an application for authorization to institute a class action, and it must show deference to the application judge's decision. The Court of Appeal will therefore intervene only if the application judge erred in law or if the judge's assessment with respect to the conditions of art. 575 C.C.P. is clearly wrong. If the application judge has made such an error with respect to any of the four conditions, the Court of Appeal can substitute its own assessment, but only for that condition and not for the others. Moreover, the application judge's role is limited at the authorization stage. An application judge who oversteps the bounds of his or her screening role and imposes an excessive evidentiary threshold requirement on the applicant or considers the merits of the case makes an error of law warranting the Court of Appeal's intervention.

In this case, given the numerous errors made by the Superior Court judge with respect to all the conditions of art. 575 C.C.P., the Court of Appeal was right to substitute its own assessment for that of the application judge with respect to all those conditions. The Superior Court judge had erred in law in considering the condition of commonality of issues set out in art. 575(1) by emphasizing the differences between the class members rather than acknowledging that there was at least one common question stemming from the fact that all the class members were alleged to be victims of members of the Congregation. On the condition of sufficiency of the alleged facts set out in art. 575(2), when the judge found that no specific, tangible facts were alleged in the application and discounted certain of the exhibits in the record, he clearly overstepped the bounds of his screening role by considering the merits of the case. As for the condition of J's status as representative plaintiff set out in art. 575(4), the judge clearly erred in concluding that the leading role played by J's lawyers in bringing the application for authorization was inconsistent with his status as representative plaintiff. The judge also erred in faulting J for not personally having taken any steps to verify the institutions where assaults were alleged to have taken place and the number of people in the proposed class. What is more, this error influenced the judge's analysis with respect to other conditions such as that of the composition of the class set out in art. 575(3).

Next, the Court of Appeal's decision to authorize the class action against both the Congregation and the Oratory is not tainted by an error that justifies a review with respect to the conditions of commonality of issues (art. 575(1)) and sufficiency of the alleged facts (art. 575(2)), the only ones the Oratory contests in the Court. As for the Congregation, there is agreement with Gascon J., who dismisses the Congregation's appeal.

Article 575(1) C.C.P. provides that a class action cannot be authorized unless the court finds that "the claims of the members of the class raise identical, similar or related issues of law or fact". This is the condition of commonality of issues. There is no requirement of a fundamental identity of the individual claims of the proposed class's members: a single identical, similar or related question of law would be sufficient to meet this condition provided that it is significant enough to affect the outcome of the class action. The fact that the situations of all members of the class are not perfectly identical does not mean that the class does not exist or is not uniform. Nor is it necessary for each member of the class to have a personal cause of action against each of the defendants.

This condition is met in this case: there are similar or related issues. J's personal cause of action against the Oratory is primarily based on it being directly liable for assaults allegedly committed at the Oratory. All the common issues identified by J actually related to the question whether the Oratory and the Congregation were negligent toward sexual assault victims. J alleges, among other things, that the Oratory knowingly and consciously chose to ignore the issue of sexual abuse by members of the Congregation at the Oratory. For a legal person such as the Oratory, to be aware of sexual abuse can mean only one thing: the Oratory's directors were aware of the abuse. Given that the Oratory's affairs were managed in whole or in part by the Congregation's members, the allegations relating to direct liability of the Oratory are actually allegations relating to faults of members of the Congregation acting as directors of the Oratory. The question of faults allegedly committed by the Congregation's members is undeniably one that is common to all the members of the class. This means that any finding of direct liability of the Oratory will advance the action of each member of the class, particularly in that it will tend to establish the existence of systemic negligence within the Congregation in relation to the alleged sexual abuse of children by its members.

Article 575(2) C.C.P. provides that the facts alleged in the application must "appear to justify" the conclusions being sought. This is the condition of sufficiency of the alleged facts. At the authorization stage, the role of the judge is to screen out only those applications which are frivolous, clearly unfounded or untenable. The applicant's burden is to establish an arguable case in light of the facts and the applicable law. This is a low threshold. The legal threshold requirement is a simple burden of demonstration that the proposed legal syllogism is tenable: the applicant must establish a good colour of right. The evidentiary threshold requirement falls comfortably below the standard of proof on a balance of probabilities. The applicant is not required to show that the claim has a sufficient basis in fact.

Furthermore, at the authorization stage, the facts alleged in the application are assumed to be true, so long as the allegations of fact are sufficiently precise. Where the allegations are not sufficiently precise, they must absolutely be accompanied by some evidence in order to form an arguable case. It is in fact possible for the evidence submitted in support of the application to contain concrete, specific or tangible facts that could be used to establish an arguable case even though the allegations in the application seem to be vague, general or imprecise. A court that must determine whether an applicant has shown an arguable case must consider the allegations in the application in light of all the evidence.

In this case, J has met the evidentiary and the legal threshold requirements under art. 575(2) C.C.P. The seeming vagueness, generality or imprecision of J's allegations in the application must be assessed in light of the context of the application and the evidence presented in support of it. That context involves incidents that occurred when J was a child. The fact that nothing was reported at the time of the events explains why no concrete, specific or tangible allegations of fact are made in the application itself. What is more, J's seemingly general allegations of fault against the Oratory are not being made in the abstract, but are supported by some evidence. His personal cause of action is founded on the Oratory's direct liability for assaults that are alleged to have been committed at that place by a member of the Congregation whom the Oratory had made one of the essential players in one of the central activities for which the Oratory was responsible. In addition, the Oratory's directors, who themselves were all members of the Congregation, knew or ought to have known about the assaults that are alleged to have been committed at the Oratory by members of the Congregation. The Congregation is hidden behind the Oratory, and this is definitely something that may be taken into consideration in law in order to impute direct liability to the Oratory. In light of some evidence that has been produced, an argument that the Oratory may have breached its duty to protect its altar boys is not frivolous, clearly unfounded or untenable. The allegations made against the Oratory and those made against the Congregation in J's application and the exhibits filed in support of it simply cannot be distinguished in any way that would be legally relevant. Lastly, the fact that other defendants could possibly have been sued but were not cannot release the Oratory from its liability for assaults allegedly committed at the Oratory.

Per Wagner C.J. and Gascon and Rowe JJ. (dissenting in part): J's remedy is neither forfeit nor clearly prescribed under art. 2926.1 C.C.Q. The class action against Province canadienne de la Congrégation de Sainte-Croix ("Congregation") should not be dismissed at the stage of the application for authorization. The application for authorization against Oratoire Saint‑Joseph du Mont‑Royal ("Oratory") should be dismissed, however.

The first paragraph of art. 2926.1 C.C.Q. provides that an action for damages for bodily injury resulting from an act which could constitute a criminal offence is prescribed by 10 years. That period becomes 30 years if the injury results from, among others, sexual assault. One of these periods begins running on the date the victim becomes aware that his or her injury is attributable to such an act. The second paragraph provides that if the victim or the author of the act dies, "the prescriptive period . . . is reduced to three years . . . from the date of death", provided that the period has not already expired. This paragraph does not create a term for forfeiture — art. 2926.1 C.C.Q. is in its entirety an integral part of the scheme of prescription, and the second paragraph is no exception to that.

In Quebec civil law, the forfeiture of a remedy cannot be presumed. Indeed, art. 2878 C.C.Q. states that forfeiture results only where expressly provided for in a text. And where there is a doubt or ambiguity, a specified period must be interpreted as a prescriptive period. Neither the words of the second paragraph of art. 2926.1 C.C.Q. nor its context or its underlying objectives lead to the conclusion that there was a clear, precise and unambiguous intention to adopt a term for forfeiture that will apply should the author of the act die. The provision contains no express and unequivocal language relating to forfeiture, and the words of the second paragraph refer to the prescriptive periods in question in the first paragraph. The proposition that a three‑year period is intrinsically short is erroneous. By reducing the period in question to three years, the legislature has simply restored the general law prescriptive period that applies under art. 2925 C.C.Q. The explanatory notes for the Act to amend the Crime Victims Compensation Act, the Act to promote good citizenship and certain provisions of the Civil Code concerning prescription ("amending Act") — by which art. 2926.1 C.C.Q. was enacted — and the consequential amendments to, among others, art. 2905 C.C.Q. — pursuant to which prescription no longer runs against a minor for an act which could constitute a criminal offence — confirm this interpretation. Lastly, the addition of art. 2926.1 at a specific place within the framework of the C.C.Q., that is, in Book Eight on prescription, is a further indication of the legislature's intention regarding the meaning to be given to this particular provision.

Moreover, the adoption of a term for forfeiture would clearly frustrate the amending Act's objective of facilitating access to civil justice and would have consequences that are illogical or even absurd. A victim whose assailant died could no longer submit that it had been impossible for him or her to act, given that such a term cannot be suspended or interrupted. The victim would then have a maximum of three years from the date the author of the act died to institute an action, even if the injury had not yet appeared. The effect of such an interpretation is that an action for damages for bodily injury for an act to which art. 2926.1 C.C.Q. applies would be subject to stricter rules than an action for damages for an injury that is not attributable to an act which could constitute a criminal offence. Finally, under the amending Act's transitional provisions, the periods — and their starting point — provided for in art. 2926.1 are of immediate application because they are declaratory. The effect of the adoption of a term for forfeiture would be that if a victim's assailant died before the amending Act was enacted, his or her right of action would be retroactively forfeit three years after the assailant's death, even if the victim's action was not prescribed before that Act came into force.

Under art. 2926.1 para. 2, the death of the victim or the author of the act merely changes the length of the period, not its starting point, which continues to be when the victim becomes aware of the connection between the assault and the injury. It is clear from the record of the legislative debate that this second paragraph does not introduce a new period: the death simply changes the period provided for in the first paragraph by reducing it to three years. By providing that the second paragraph applies if one of the principal protagonists dies, the legislature ensured a proper balancing of the interests affected by the lengthy prescriptive period, such as uncertainty with respect to the property of the succession and the integrity of the adversarial process, without diminishing the objective of facilitating access to justice for victims. Furthermore, the amending Act's transitional provisions state that the provisions concerning the starting point of the prescriptive periods provided for in art. 2926.1 C.C.Q. are declaratory. Thus, the effect of finding that the death of one of the principal protagonists is a distinct starting point would be that the right of action of a victim whose assailant died more than three years before the amending Act came into force would be extinguished retroactively.

The reduction of the period provided for in art. 2926.1 para. 2 applies only in relation to the succession of the victim or to that of the author of the act. Under the general rules of civil liability, the victim's remedy against a third party who is liable for his or her own fault or for the act or omission of another person is not dependent on the direct remedy against the author of the act. Prescription is determined for each action individually. Any other conclusion would clearly frustrate the purpose of facilitating access to civil justice for assault victims and would allow parties who may be at fault to go on with their lives without liability.

In this case, the starting point of the applicable period was the time when J became aware of the connection between the assaults and his injury, not the date of death of his alleged assailants. Exactly when he became aware of the connection and how this might have affected the applicable prescriptive period will be determined at the trial on the merits. At the authorization stage, despite the fact that the alleged acts occurred more than 30 years ago, J's allegation that he did not become aware of that connection until 2011 must be assumed to be true.

The class action against the Congregation should not be dismissed at the stage of the application for authorization. At this stage, the court's role is to screen applications in order to filter out any that are frivolous and to ensure that parties are not being forced to defend against untenable claims. The evidentiary threshold that must be met in order to determine whether each of the conditions set out in art. 575 C.C.P. is satisfied is a low one at this preliminary stage. It will suffice for the applicant to show an arguable case in light of the facts and the applicable law. For an arguable case to be established, however, more than vague, general or imprecise allegations are required. The allegations and the exhibits filed in support of them, when considered as a whole, establish an arguable case against the Congregation. Although the Congregation was constituted only in 2008, the exhibits in the record show that a number of the Congregation's establishments have used the appellation "Sainte‑Croix" in one form or another over the years. Moreover, the Congregation has not argued that the alleged assailants might have been part of a religious community other than the one it represents. And in 2009, the Congregation had agreed to take up the interest of other entities in the context of a settlement flowing from another application for authorization in relation to alleged sexual abuse by members of the Congregation. On that occasion, the Superior Court had found that all the conditions for authorization were satisfied and had authorized the institution of the class action for the purpose of approving the settlement. In this case, it will be for the parties to address the Congregation's corporate structure at the trial on the merits and to make whatever complete submissions they consider appropriate at that time. The colour of right condition of art. 575(2) C.C.P. is satisfied: the application for authorization against the Congregation is neither untenable nor frivolous.

However, the allegations in the application and the exhibits filed in support of them do not support a cause of action in liability against the Oratory, an entity distinct from the Congregation. In this case, no facts, either alleged or found in the exhibits, support a rigorous deductive reasoning that involves more than mere assumptions and speculations.

Regarding the direct fault alleged against the Oratory, the allegations consist of conclusions of fact without any factual underpinning, of legal arguments, or of opinions. Unlike in the Congregation's case, no other allegation in the application and none of the exhibits filed in support of the allegations lend credence to these general allegations, which have no factual underpinning. There is nothing that illustrates how the Oratory's acts or omissions allowed the assaults to occur or facilitated them or that supports the allegation that a representative or employee of the Oratory tried to conceal the assaults. Nor does the argument that any allegation made or evidence adduced against the Congregation can also apply to the Oratory because the Congregation, through some of its members, is alleged to have helped found the Oratory establish the necessary legal syllogism in the absence of specific and tangible allegations of negligence on the Oratory's part or of the existence of a relationship of subordination between it and the members of that religious community.

As for whether the Oratory is liable, as principal, it was necessary to allege, at a minimum, that members of the Congregation were subordinates of the Oratory who had committed faults in the performance of their duties. There is quite simply no factual support for such a determination either in the allegations or in the exhibits filed in support of them. Simply identifying a physical place belonging to the Oratory as the place at which some of the alleged assaults occurred cannot lead to the conclusion that the Oratory was the principal in relation to the member of the Congregation who allegedly assaulted J.

Because the colour of right condition of art. 575(2) C.C.P. is not met, the action against the Oratory must be dismissed. It is not necessary to consider the condition of commonality of issues (art. 575(1) C.C.P.).

Per Côté J. (dissenting): The appeal of Province canadienne de la Congrégation de Sainte‑Croix ("Province canadienne") should be allowed because the Court of Appeal did not show that the application judge's assessment of the condition for authorization set out in art. 575(2) C.C.P. was clearly wrong. The appeal of Oratoire Saint‑Joseph du Mont‑Royal ("Oratory") should also be allowed for the reasons given by Gascon J. The application judge's decision dismissing the application for authorization to institute a class action should therefore be restored in relation to both Province canadienne and the Oratory. However, for different reasons than those given by Gascon J., J's right of action is neither forfeited nor prescribed under the second paragraph of art. 2926.1 C.C.Q.

An application for authorization to institute a class action will be granted if it meets four cumulative conditions set out in art. 575 C.C.P. This authorization mechanism must not be reduced to a mere formality. In particular, under art. 575(2) C.C.P., the judge must ensure that "the facts alleged appear to justify the conclusions sought". The burden on the applicant is to show an arguable case, which is equivalent to a good colour of right, and not only to establish that the application is not frivolous or clearly unfounded.

The application judge must be able to infer the proposed legal syllogism from the facts alleged in the application. The legal syllogism must be clear, complete and rigorous. Vague, general or imprecise allegations — as well as mere statements of a legal nature, opinions or assumptions — cannot suffice to establish an arguable case. No evidence can cure the absence of specific factual allegations regarding an essential element of the cause of action. The application judge should confine himself or herself to the facts that are alleged, without trying to complete them.

In the case at bar, it was certainly open to the application judge to conclude that J had not met his burden of demonstrating an arguable case. The facts alleged disclose no cause of action — no legal relationship — between him and Province canadienne. The uncontested evidence adduced by J himself clearly establishes that Province canadienne, as a distinct legal person, did not exist at the time of the alleged events. It was constituted on January 1, 2008 under the Religious Corporations Act and has not been amalgamated or continued. J's two alleged aggressors died in 2001 and 2004 and thus were never members of Province canadienne. Even if the facts are assumed to be true and the evidence adduced is considered, the application for authorization does not indicate the basis on which Province canadienne could be liable — whether for its own fault or for that of another person — for acts or omissions that occurred before it was constituted. The legal syllogism is flawed or clearly incomplete, if not absent.

The fact that Province canadienne has a religious mission does not allow its juridical personality to be disregarded. Being one of the legal vehicles of a religious community whose history dates back to well before 2008 cannot make it liable per se for acts and omissions committed before it was constituted by members of that community or by other legal entities that may have been connected to that community. The fact that two corporations may be constituted by the same members or by the same religious community is not in itself of any legal consequence. In the instant case, the application for authorization contains no factual allegations relating to fraud, abuse of right or contravention of public order that could possibly justify disregarding or ignoring Province canadienne's juridical personality under art. 317 C.C.Q. Moreover, even if such allegations had been made, it is by no means clear that an arguable case could have been established on that basis given that Province canadienne did not exist at the relevant time. It therefore could not have taken part in the alleged acts and omissions and, for this reason, be liable for them.

A class action cannot be authorized in relation to a defendant solely on the basis of its close connections with other entities. In addition, in the case at bar, the application for authorization says practically nothing about the corporate identity of Province canadienne and the Oratory and nothing at all about their possible connections with other entities. The fact that Province canadienne took up the defence of other entities for their actions in another case relating to sexual aggressions has little legal significance. The settlement reached in that other case was clearly entered into without prejudice and without any admission, and it suggests that, if faults were committed, entities other than Province canadienne are liable for them. The Superior Court authorized the class action against Province canadienne in that other case solely for the purposes of the settlement; its decision rested on a laconic analysis carried out essentially as a matter of form, which could not be binding on the application judge in the present case.

Province canadienne and the Oratory have not shown that the period established by the second paragraph of art. 2926.1 C.C.Q. is a term for forfeiture. Prescription is based first and foremost on the idea of sanctioning failure to act by a person who has a right to exercise, which explains why there are mechanisms like suspension and interruption that mitigate the rigours of prescription. By contrast, forfeiture is meant to quickly put an end, for all purposes, to the possibility of performing a particular act. Forfeiture is exceptional in nature: it automatically entails the loss of a right even though its holder has done nothing wrong. The legislature has therefore enacted an interpretative provision, the second paragraph of art. 2878 C.C.Q., which states that "forfeiture is never presumed; it results only where expressly provided for in a text". Although no set formula is necessary, a term for forfeiture can be found to exist only where the legislature has spoken in a precise, clear and unambiguous manner.

The second paragraph of art. 2926.1 states that the shortened period of three years "runs from the date of death". The wording is clear and explicit: the death of the victim or the author of the act marks a starting point that differs from the one provided for in the first paragraph. The first paragraph codifies the judge‑made rule that prescription does not run against a victim of sexual aggression who is not aware of the connection between that act and the injury suffered. It provides that an action "is prescribed . . . from the date the victim becomes aware" of that connection. It cannot be found from the wording of the second paragraph that the death simply has the effect of shortening the 10‑ or 30‑year period provided for in the first paragraph. The expressions "from the date" in the first paragraph and "from the date of death" in the second paragraph are equivalent, and they both indicate the starting point for prescription. Words used by the legislature are presumed to have the same meaning throughout the same statute. This interpretation is also the most coherent. If the death was not a new starting point but simply had the effect of shortening the period, an action by the victim's succession might be imprescriptible in some circumstances. The solution the legislature seems to have chosen is a three‑year period that runs from the date of death of the victim or the author of the act, regardless of whether, before that date, the victim made the connection between the act and the injury suffered.

The fact that the three‑year period under the second paragraph is linked to a specific, objective fact that is fixed in time, namely the death of the victim or the author of the act, provides a strong indication of forfeiture. The link to the death suggests that the period in question, unlike a prescriptive period, is not intended to sanction the victim's negligence. However, it is difficult to argue that the wording of the second paragraph makes no reference to prescription. The French version refers to the " délai applicable ", which is the 10‑ or 30‑year prescriptive period under the first paragraph. The English version is even more explicit: "the prescriptive period, if not already expired, is reduced to three years". Therefore, it cannot be concluded from the wording of the provision that the legislature expressed an intention to create a term for forfeiture, rather than a prescriptive period, in a sufficiently precise, clear and unambiguous manner.

Absent an express provision to the contrary, the general provisions dealing with the suspension of prescription — including the provision on impossibility in fact to act (art. 2904 C.C.Q.) — apply to the period provided for in the second paragraph of art. 2926.1 C.C.Q., subject to the following exception. Given that the second paragraph of art. 2926.1 C.C.Q. sets a different starting point for prescription, separate from the one established by the first paragraph, lack of awareness of the connection between the alleged act and the injury suffered cannot suspend the period provided for in the second paragraph. The opposite interpretation would frustrate the legislature's intention that the period run from the date of death, and no longer from the date the victim becomes aware of the connection.

The second paragraph of art. 2926.1 C.C.Q. applies to all actions for damages for bodily injury resulting from sexual aggression. The wording of the provision draws no distinction between the author of the act and third parties who might also be liable for their own fault or for the act or omission of another person. The purpose of this provision is to address the legislature's concerns about the preservation of evidence and, more broadly, the integrity of the adversarial process.

The starting point under the second paragraph, the date of death, does not have retroactive effect, regardless of whether the period is a term for forfeiture or a prescriptive period. The introduction of a new period does not retroactively extinguish an existing right of action unless such an intention is clearly expressed. This is not the case here. First of all, the amending Act specifically mentions only prescription and contains no transitional provision that could apply to the starting point of a term for forfeiture. Second, if the second paragraph of art. 2926.1 C.C.Q. simply provides for a prescriptive period, s. 13 of the amending Act does not give it any retroactive effect, because the new starting point set on the date of death is not declaratory in nature. The legislature stated in s. 13 that the provisions concerning the starting point for prescription are "declaratory". A declaratory provision has retroactive effect insofar as it interprets existing law in the way that a judicial decision would. The starting point under the second paragraph, unlike the first paragraph, can hardly be characterized as declaratory given that it is entirely new law that is not meant to settle or clarify existing law. Therefore, the legislature did not express an intention to give it retroactive effect. If there is any doubt in this regard, the interpretation that limits the scope of provisions that are explicitly retroactive or declaratory is to be preferred. Accordingly, whatever the nature of the period under the second paragraph of art. 2926.1 C.C.Q., it would not have begun to run, in relation to existing juridical situations, before the coming into force of the amending Act. As a result, the introduction of a new starting point set on the date of death would not affect J's right of action in the instant case.

Cases Cited

By Brown J.

Applied: Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600; referred to: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65; Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725; Tremaine v. A.H. Robins Canada Inc., 1990 CanLII 2808 (QC CA), [1990] R.D.J. 500; Comité d'environnement de La Baie Inc. v. Société d'électrolyse et de chimie Alcan Ltée, 1990 CanLII 3338 (QC CA), [1990] R.J.Q. 655; Harmegnies v. Toyota Canada inc., 2008 QCCA 380; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; Pharmascience inc. v. Option Consommateurs, 2005 QCCA 437; Trottier v. Canadian Malartic Mine, 2018 QCCA 1075; Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184; Griffith v. Winter, 2002 BCSC 1219, 23 C.P.C. (5th) 336, aff'd 2003 BCCA 367, 15 B.C.L.R. (4th) 390; Sofio v. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2015 QCCA 1820; Sibiga v. Fido Solutions inc., 2016 QCCA 1299; Charles v. Boiron Canada inc., 2016 QCCA 1716; Belmamoun v. Brossard (Ville), 2017 QCCA 102, 68 M.P.L.R. (5th) 46; Masella v. TD Bank Financial Group, 2016 QCCA 24; Del Guidice v. Honda Canada inc., 2007 QCCA 922, [2007] R.J.Q. 1496; Collectif de défense des droits de la Montérégie (CDDM) v. Centre hospitalier régional du Suroît du Centre de santé et de services sociaux du Suroît, 2011 QCCA 826; Cornellier v. Province canadienne de la Congrégation de Ste‑Croix, 2011 QCCS 6670; John Doe v. Bennett, 2004 SCC 17, [2004] 1 S.C.R. 436; Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534; Lambert (Gestion Peggy) v. Écolait ltée, 2016 QCCA 659; Baulne v. Bélanger, 2016 QCCS 5387; Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199; Cornellier v. Province canadienne de la Congrégation de Ste‑Croix, 2013 QCCS 3385; Sibiga v. Fido Solutions inc., 2014 QCCS 3235; Charles v. Boiron Canada inc., 2015 QCCS 312; Lévesque v. Vidéotron, s.e.n.c., 2015 QCCA 205; Martel v. Kia Canada inc., 2015 QCCA 1033; Union des consommateurs v. Air Canada, 2014 QCCA 523; A v. Frères du Sacré‑Cœur, 2017 QCCS 34; Brown v. B2B Trust, 2012 QCCA 900; Carrier v. Québec (Procureur général), 2011 QCCA 1231; Adams v. Banque Amex du Canada, 2006 QCCS 5358; Guilbert v. Vacances sans Frontière Ltée, 1991 CanLII 2869 (QC CA), [1991] R.D.J. 513; Trudel v. Banque Toronto‑Dominion, 2007 QCCA 413; Fortier v. Meubles Léon ltée, 2014 QCCA 195; Toure v. Brault & Martineau inc., 2014 QCCA 1577; Lambert v. Whirlpool Canada, l.p., 2015 QCCA 433; Groupe d'action d'investisseurs dans Biosyntech v. Tsang, 2016 QCCA 1923; Comité régional des usagers des transports en commun de Québec v. Quebec Urban Community Transit Commission, 1981 CanLII 19 (SCC), [1981] 1 S.C.R. 424; Nadon v. Anjou (Ville), 1994 CanLII 5900 (QC CA), [1994] R.J.Q. 1823; Oubliés du viaduc de la Montée Monette v. Consultants SM inc., 2015 QCCS 3308; Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18, [2015] 2 S.C.R. 106; Asselin v. Desjardins Cabinet de services financiers inc., 2017 QCCA 1673; Martin v. Société Telus Communications, 2010 QCCA 2376; Guimond v. Quebec (Attorney General), 1996 CanLII 175 (SCC), [1996] 3 S.C.R. 347; Berdah v. Nolisair International Inc., 1991 CanLII 3579 (QC CA), [1991] R.D.J. 417; Regroupement des citoyens contre la pollution v. Alex Couture inc., 2007 QCCA 565, [2007] R.J.Q. 859; Halvorson v. British Columbia (Medical Services Commission), 2010 BCCA 267, 4 B.C.L.R. (5th) 292; Markson v. MBNA Canada Bank, 2007 ONCA 334, 85 O.R. (3d) 321; Option Consommateurs v. Bell Mobilité, 2008 QCCA 2201; Whirlpool Canada v. Gaudette, 2018 QCCA 1206; Centre de la communauté sourde du Montréal métropolitain v. Institut Raymond‑Dewar, 2012 QCCS 1146; St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392; Option Consommateurs v. Merck & Co. inc., 2013 QCCA 57; Option Consommateurs v. Fédération des caisses Desjardins du Québec, 2010 QCCA 1416; Bouchard v. Agropur Coopérative, 2006 QCCA 1342, [2006] R.J.Q. 2349; Option Consommateurs v. Novopharm Ltd., 2008 QCCA 949, [2008] R.J.Q. 1350.

By Gascon J. (dissenting in part)

Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600; Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6; Roussel v. Créations Marcel Therrien inc., 2011 QCCA 496, [2011] R.J.Q. 555; Global Credit & Collection Inc. v. Rolland, 2011 QCCA 2278, [2012] R.J.Q. 12; Équipement Industriel Robert Inc. v. 9061‑2110 Québec Inc., 2004 CanLII 10729; Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306; Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801; Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, [2013] 3 S.C.R. 125; Western Minerals Ltd. v. Gaumont, 1953 CanLII 70 (SCC), [1953] 1 S.C.R. 345; Gravel v. City of St‑Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660; Chambre des notaires du Québec v. Haltrecht, 1992 CanLII 3021 (QC CA), [1992] R.J.Q. 947; Kent v. The King, 1924 CanLII 14 (SCC), [1924] S.C.R. 388; Banque de Nouvelle‑Écosse v. Cohen, 1999 CanLII 13720; Québec (Commission de la construction) v. Gastier inc., 1998 CanLII 13132; Cornellier v. Province canadienne de la Congrégation de Ste‑Croix, 2011 QCCS 6670; Cornellier v. Province canadienne de la Congrégation de Ste‑Croix, 2013 QCCS 3385; A v. Frères du Sacré‑Cœur, 2017 QCCS 5394; Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65; Asselin v. Desjardins Cabinet de services financiers inc., 2017 QCCA 1673.

By Côté J. (dissenting)

Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549; Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600; Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65; Sofio v. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2015 QCCA 1820; Bouchard v. Agropur Coopérative, 2006 QCCA 1342, [2006] R.J.Q. 2349; Option Consommateurs v. Fédération des caisses Desjardins du Québec, 2010 QCCA 1416; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Comité régional des usagers des transports en commun de Québec v. Quebec Urban Community Transit Commission, 1981 CanLII 19 (SCC), [1981] 1 S.C.R. 424; Pharmascience inc. v. Option Consommateurs, 2005 QCCA 437, [2005] R.J.Q. 1367; Option Consommateurs v. Bell Mobilité, 2008 QCCA 2201; Union des consommateurs v. Bell Canada, 2012 QCCA 1287, [2012] R.J.Q. 1243; A v. Frères du Sacré‑Cœur, 2017 QCCS 5394; Trudel v. Banque Toronto‑Dominion, 2007 QCCA 413; Toure v. Brault & Martineau inc., 2014 QCCA 1577; Lambert v. Whirlpool Canada, l.p., 2015 QCCA 433; Groupe d'action d'investisseurs dans Biosyntech v. Tsang, 2016 QCCA 1923; Fortier v. Meubles Léon ltée, 2014 QCCA 195; Sibiga v. Fido Solutions inc., 2016 QCCA 1299; Charles v. Boiron Canada inc., 2016 QCCA 1716; Asselin v. Desjardins Cabinet de services financiers inc., 2017 QCCA 1673; Domaine de l'Orée des bois La Plaine inc. v. Garon, 2012 QCCA 269; Lanoue v. Brasserie Labatt ltée, 1999 CanLII 13784; Coutu v. Québec (Commission des droits de la personne), 1998 CanLII 13100; Deraspe v. Zinc électrolytique du Canada ltée, 2014 QCCS 1182, aff'd 2014 QCCA 2266, leave to appeal refused, [2015] 2 S.C.R. vi; Labranche v. Énergie éolienne des Moulins, s.e.c., 2016 QCCS 1479, application for leave to appeal dismissed, 2016 QCCA 1879; Option Consommateurs v. LG Chem Ltd., 2017 QCCS 3569; Cornellier v. Province canadienne de la Congrégation de Ste‑Croix, 2013 QCCS 3385; Cornellier v. Province canadienne de la Congrégation de Ste‑Croix, 2011 QCCS 6670; Alexandre v. Dufour, 2004 CanLII 45037 (QC CA), [2005] R.J.Q. 1; Pierre‑Louis v. Québec (Ville de), 2008 QCCA 1687, [2008] R.J.Q. 2063; Andreou v. Agence du revenu du Québec, 2018 QCCA 695; Roussel v. Créations Marcel Therrien inc., 2011 QCCA 496, [2011] R.J.Q. 555; Global Credit & Collection Inc. v. Rolland, 2011 QCCA 2278, [2012] R.J.Q. 12; Gauthier v. Beaumont, 1998 CanLII 788 (SCC), [1998] 2 S.C.R. 3; Pellerin Savitz LLP v. Guindon, 2017 SCC 29, [2017] 1 S.C.R. 575; Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254; Proulx v. Desbiens, 2014 QCCS 4117; A v. Frères du Sacré‑Cœur, 2017 QCCS 34; Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Catudal v. Borduas, 2006 QCCA 1090, [2006] R.J.Q. 2052; P.L. v. J.L., 2011 QCCA 1233, [2011] R.J.Q. 1274; C. (S.) v. Archevêque catholique romain de Québec, 2009 QCCA 1349, 326 D.L.R. (4th) 196; Christensen v. Roman Catholic Archbishop of Québec, 2010 SCC 44, [2010] 2 S.C.R. 694; Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; Banque de Nouvelle‑Écosse v. Cohen, 1999 CanLII 13720; Québec (Commission de la construction) v. Gastier inc., 1998 CanLII 13132; Gravel v. City of St-Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660; Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, [2013] 3 S.C.R. 125; Western Minerals Ltd. v. Gaumont, 1953 CanLII 70 (SCC), [1953] 1 S.C.R. 345; Reid v. Reid (1886), 31 Ch. D. 402; Kent v. The King, 1924 CanLII 14 (SCC), [1924] S.C.R. 388.

Statutes and Regulations Cited

Act respecting the implementation of the reform of the Civil Code, CQLR, c. CCQ‑1992, s. 6.

Act to amend the charter of Les Religieux de Sainte‑Croix, S.Q. 1947, c. 121.

Act to amend the Crime Victims Compensation Act, the Act to promote good citizenship and certain provisions of the Civil Code concerning prescription, S.Q. 2013, c. 8, s. 13 [Act 8].

Act to incorporate Les Frères de Sainte‑Croix, S.Q. 1947, c. 122.

Act to incorporate Les Religieux de Ste. Croix, S.Q. 1935, c. 152.

Act to incorporate "St. Joseph's Oratory of Mount Royal", S.Q. 1916, c. 90, preamble, ss. 1, 2, 4, 5, 7.

Act to reform the Code of Civil Procedure, S.Q. 2002, c. 7, s. 150.

Business Corporations Act, CQLR, c. S‑31.1.

Civil Code of Québec, art. 298, 302, 309, 317, Book Five, 1457, 1463, 1526, 1528, 1529, Book Eight, 2878, 2880 para. 2, 2904, 2905, 2921, 2925, 2926, 2926.1, 2927, 2928, 2932.

Code of Civil Procedure, CQLR, c. C‑25, art. 1003.

Code of Civil Procedure, CQLR, c. C‑25.01, art. 23, 51, 571, 574, 575, 588 para. 2.

Companies Act, CQLR, c. C‑38, Part III, s. 18(6).

Interpretation Act, CQLR, c. I‑16, ss. 41, 41.1, 50.

Religious Corporations Act, CQLR, c. C‑71 [previously the Religious Corporations Act, S.Q. 1971, c. 75], ss. 1 "congregation", "church", 2, 8, 8.1, 13, 14, 14.1, 16.

Appeals

APPEALS from a judgment of the Quebec Court of Appeal (Gagnon, Marcotte and Healy JJ.A.), 2017 QCCA 1460, [2017] J.Q. no 13138 (QL), 2017 CarswellQue 8365 (WL Can.), setting aside a decision of Lanctôt J., 2015 QCCS 3583, [2015] J.Q. no 7141 (QL), 2015 CarswellQue 7360 (WL Can.). Appeals dismissed, Wagner C.J. and Gascon and Rowe JJ. dissenting in part and Côté J. dissenting.

Counsel

Marc Beauchemin and Emmanuel Laurin‑Légaré, for the appellant/intervener L'Oratoire Saint‑Joseph du Mont‑Royal.

Éric Simard, Stéphanie Lavallée and Marie‑Pier Gagnon Nadeau, for the appellant/intervener Province canadienne de la Congrégation de Sainte‑Croix.

Robert Kugler, Alain Arsenault, Gilles Gareau, Pierre Boivin and Olivera Pajani, for the respondent.

Reasons for Judgment

English version of the judgment of Abella, Moldaver, Karakatsanis, Brown and Martin JJ. delivered by

Brown J. —

I. Introduction

[ 1 ] I have read the carefully crafted reasons of my colleague Gascon J., in which he provides a thorough and comprehensive review of the facts and the judicial history. I will therefore limit myself here to a few words on the context of the two appeals before the Court. In his re‑amended motion for authorization to institute a class action and to be a representative plaintiff dated May 8, 2015 ("application"), A.R.C., at pp. 96‑111, and A.R.O., vol. I, at pp. 89‑104, the respondent, J.J., applies for authorization to institute a class action on behalf of all [^1] victims of sexual assaults that are alleged to have been committed in various institutions in Quebec since 1940 by brothers and fathers who were members of the religious community known as the Congregation of Holy Cross. As defendants, J.J. has designated the appellant Province canadienne de la Congrégation de Sainte‑Croix ("Congregation") — which is at present the legal person whose objects are to organize, administer and maintain that religious community — and the appellant Oratoire Saint‑Joseph du Mont‑Royal ("Oratory") — which is an institution in which J.J. alleges he was sexually assaulted as a child and that is or was at the time of the events controlled by the religious community known as the Congregation of Holy Cross. The appellants vehemently object to the granting of authorization to institute a class action against them.

[ 2 ] The Congregation argues that it was constituted a corporation only in 2008 and that it cannot be held liable for acts that are for the most part alleged to have been committed before it was incorporated. It suggests that J.J. should instead have sued Corporation Jean‑Brillant — a legal person that existed at the time of the events as "Les Frères de Sainte‑Croix", but that today reports no establishments or employees and does not have as its objects to organize, administer and maintain a religious congregation. The Oratory, for its part, submits that it has no connection with the religious community known as the Congregation of Holy Cross. It claims to be a distinct entity whose sole mission is to operate and maintain that place of worship. In addition, both the appellants are of the view that, in any event, J.J.'s personal action is irreparably forfeit as a result of art. 2926.1 para. 2 of the Civil Code of Québec (" C.C.Q. ").

[ 3 ] The Quebec Superior Court refused to authorize the institution of the class action against the two appellants, but a majority of the Quebec Court of Appeal reversed that judgment. The dissenting Court of Appeal judge agreed with authorizing the class action against the Congregation, but not against the Oratory.

[ 4 ] I am in complete agreement with the analysis of my colleague Gascon J. on the subject of art. 2926.1 C.C.Q., and in particular with his conclusion that the second paragraph of that article does not, as the appellants argue, create a term for forfeiture ( délai de déchéance ). I also concur in his proposal that the Congregation's appeal be dismissed. With great respect, however, I cannot agree with his conclusion regarding the Oratory. In my opinion, the judgment in which the Superior Court denied authorization to institute a class action against both the Congregation and the Oratory is tainted by numerous errors, of fact and of law, in relation to all the conditions set out in art. 575 of the Code of Civil Procedure, CQLR, c. C‑25.01 (" C.C.P. "), formerly art. 1003 of the Code of Civil Procedure, CQLR, c. C‑25. It was therefore open to the Court of Appeal to intervene and to substitute its own assessment with regard to those conditions for that of the Superior Court judge.

[ 5 ] With respect, I see nothing that would justify this Court in reversing the Court of Appeal's decision to authorize the institution of a class action against both the Congregation and the Oratory. The connection between the Congregation and the Oratory is so close — J.J.'s allegations and the exhibits filed in support of the application against both these entities are in fact largely identical — that, respectfully, the result proposed by the dissenting Court of Appeal judge is not really convincing. Similarly, the Superior Court judge's assertion that the application is [ translation] "practically silent regarding involvement on the Oratory's part" is, again with respect, incorrect, and clearly does not suffice to dispose of the proposed class action against the Oratory: 2015 QCCS 3583, at para. 137. The main allegations in the application, set out in paras. 3.33 to 3.38, are written in the plural ("the respondents") and therefore apply to the Oratory as much as to the Congregation. The two appeals should accordingly be dismissed, with costs to J.J.

II. Analysis

[ 6 ] Article 571 para. 1 C.C.P. defines the class action as a procedural means enabling a person who is a member of a class of persons to sue, without a mandate, on behalf of all the members of the class and to represent the class. This procedural vehicle has several objectives, namely to facilitate access to justice, to modify harmful behaviour and to conserve judicial resources: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 15; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at paras. 27‑29; Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3, at para. 1. Prior authorization of a court is required for a person to institute a class action: art. 574 para. 1 C.C.P. In disposing of an application for authorization of this nature, the court must assess the four conditions set out in art. 575 C.C.P., which reads as follows:

575. The court authorizes the class action and appoints the class member it designates as representative plaintiff if it is of the opinion that

(1) the claims of the members of the class raise identical, similar or related issues of law or fact;

(2) the facts alleged appear to justify the conclusions sought;

(3) the composition of the class makes it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others or for consolidation of proceedings; and

(4) the class member appointed as representative plaintiff is in a position to properly represent the class members.

[ 7 ] At the authorization stage, the court plays a "screening" role: Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600, at paras. 59 and 65; Vivendi, at para. 37. It must simply ensure that the applicant meets the conditions of art. 575 C.C.P. If the conditions are met, the class action must be authorized. The Superior Court will consider the merits of the case later. This means that, in determining whether the conditions of art. 575 C.C.P. are met at the authorization stage, the judge is ruling on a purely procedural question. The judge must not deal with the merits of the case, as they are to be considered only after the application for authorization has been granted: Infineon, at para. 68; Vivendi, at para. 37; Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65, at para. 22.

[ 8 ] The Court has given "a broad interpretation and application to the requirements for authorization [of the institution of a class action], and 'the tenor of the jurisprudence clearly favours easier access to the class action as a vehicle for achieving the twin goals of deterrence and victim compensation'": Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725, at para. 43, quoting Infineon, at para. 60; see also Marcotte v. Longueuil, at para. 22. In other words, the class action is not an [ translation] "exceptional remedy" that must be interpreted narrowly: Tremaine v. A.H. Robins Canada Inc., 1990 CanLII 2808 (QC CA), [1990] R.D.J. 500 (C.A.); see also Comité d'environnement de La Baie Inc. v. Société d'électrolyse et de chimie Alcan Ltée, 1990 CanLII 3338 (QC CA), [1990] R.J.Q. 655 (C.A.). On the contrary, it is [ translation] "an ordinary remedy whose purpose is to foster social justice": Harmegnies v. Toyota Canada inc., 2008 QCCA 380, at para. 29; see also Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 16; Pharmascience inc. v. Option Consommateurs, 2005 QCCA 437, at para. 20; Trottier v. Canadian Malartic Mine, 2018 QCCA 1075, at paras. 35‑36. There are those who consider that [ translation] "the class action is highly appropriate in sexual abuse cases, given the great vulnerability of the victims": L. Langevin and N. Des Rosiers, with the collaboration of M.‑P. Nadeau, L'indemnisation des victimes de violence sexuelle et conjugale (2nd ed. 2012), at p. 370; see also, on this point, Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, at para. 39; Griffith v. Winter, 2002 BCSC 1219, 23 C.P.C. (5th) 336, at para. 38, aff'd 2003 BCCA 367, 15 B.C.L.R. (4th) 390.

[ 9 ] In ruling on the Oratory's appeal, there are two questions that must be answered. The first is whether the Court of Appeal's intervention in the Superior Court judge's decision was justified. The second, which arises only if the Court of Appeal is found to have been justified in intervening and in substituting its own assessment with respect to the conditions of art. 575 C.C.P. for that of the Superior Court judge, is whether the Court of Appeal's decision to authorize the class action against both the Congregation and the Oratory is itself tainted by an error that justifies a review by this Court.

A. Was the Court of Appeal's Intervention in the Superior Court Judge's Decision Justified?

[ 10 ] The Court of Appeal's "power to intervene . . . is limited" when it hears an appeal from a decision on an application for authorization to institute a class action, which means that "it must show deference to the motion judge's decision": Vivendi, at para. 34. It is well established that the assessment of whether the conditions for authorization are met entails the exercise of a discretion: Harmegnies, at paras. 20‑24. The Court of Appeal "will therefore intervene . . . only if the motion judge erred in law or if the judge's assessment with respect to the criteria of art. [575] C.C.P. is clearly wrong": Vivendi, at para. 34. Moreover, "[i]f the motion judge errs in law or if his or her assessment with respect to any criterion of art. [575] C.C.P. is clearly wrong, the Court of Appeal can substitute its own assessment, but only for that criterion and not for the others": Vivendi, at para. 35; see also Sofio v. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2015 QCCA 1820, at para. 17; Sibiga v. Fido Solutions inc., 2016 QCCA 1299, at paras. 32‑35; Charles v. Boiron Canada inc., 2016 QCCA 1716, at para. 37; Belmamoun v. Brossard (Ville), 2017 QCCA 102, 68 M.P.L.R. (5th) 46, at para. 70.

[ 11 ] It should be noted, however, that while it is true that the Court of Appeal's power to intervene in a decision on an application for authorization to institute a class action is limited, so too is the application judge's role:

While the compass for appellate intervention is indeed limited, so too is the role of the motion judge. In clear terms, particularly since its decision in Infineon, the Supreme Court has repeatedly emphasized that the judge's function at the authorization stage is only one of filtering out untenable claims. The [Supreme] Court stressed that the law does not impose an onerous burden on the person seeking authorization. "He or she need only establish a 'prima facie case' or an 'arguable case'", wrote LeBel and Wagner JJ. in Vivendi, specifying that a motion judge "must not deal with the merits of the case, as they are to be considered only after the motion for authorization is granted".

Since Infineon, [the] Court [of Appeal] has consistently relied upon this standard, invoking it when authorization has been wrongly denied because too high a burden was imposed.

(Sibiga, at paras. 34‑35)

[ 12 ] Thus, a judge who oversteps the bounds of his or her screening role at the authorization stage, and in so doing imposes an excessive evidentiary threshold requirement on the applicant or considers the merits of the case, makes an error of law warranting the Court of Appeal's intervention: Vivendi, at paras. 4 and 37; Infineon, at paras. 40 and 68; Marcotte v. Longueuil, at para. 22; see also Sibiga, at paras. 71 and 80; Masella v. TD Bank Financial Group, 2016 QCCA 24, at para. 9.

[ 13 ] In the case at bar, the Superior Court judge's reasons in support of his conclusion denying authorization to institute a class action against the Oratory were particularly brief: paras. 128‑38. Aside from his comments casting doubt on the fact that only the Oratory was being sued together with the Congregation whereas, in his view, logic would instead have dictated either that all the institutions where members of the class are alleged to have been sexually assaulted should be sued or that none of them should be — an argument to which I will return below — the judge merely stated that [ translation] "the reasons that justify denying the action against the Congregation . . . are the same as the ones that apply to the action against the Oratory": para. 138 (emphasis added). With respect, it therefore seems somewhat incongruous to conclude, as Gascon J. does, that the Court of Appeal's intervention was justified with regard to the proposed class action against the Congregation, but that that court was not justified in intervening with regard to the contemplated class action against the Oratory.

[ 14 ] That being said, it is useful to review some of the errors made by the Superior Court judge that justified the Court of Appeal's intervention. I note that the Superior Court judge found that none of the conditions of art. 575 C.C.P. were met, whereas the Court of Appeal concluded to the contrary, that all of them were. In this Court, the Oratory is challenging only the conclusions that J.J. meets the conditions of commonality of issues (art. 575(1) C.C.P.) and sufficiency of the alleged facts (art. 575(2) C.C.P.). The Oratory is also arguing that a "forfeiture" of J.J.'s personal action affects his ability to obtain the status of a representative plaintiff who is capable of properly representing the class members (art. 575(4) C.C.P.): A.F.O., at para. 114. On the other hand, counsel for the Oratory expressly confirmed at the hearing of the appeal that his client would not be challenging the conclusion that J.J. meets the composition of the class condition (art. 575(3) C.C.P.). Although the Oratory's challenge to J.J.'s status as representative plaintiff for the class members is based solely on arguments relating to the supposed "forfeiture" of his personal action, I find it worthwhile to discuss the Superior Court judge's errors in relation to this condition as well as to the other two conditions at issue in this Court, given that the judge's own reasons suggest that the errors he made with respect to the condition of status as representative plaintiff affected his analysis regarding the other conditions. He stated that the circumstances of the case before him [ translation] "highlight the fact that the various conditions set out in [art. 575 C.C.P.] are not watertight compartments" and that, as a result, "the reasons why [the application had to] fail with respect to one of the requirements also justif[ied] dismissing it in relation to another": para. 22, quoting Del Guidice v. Honda Canada inc., 2007 QCCA 922, [2007] R.J.Q. 1496, at para. 40; see also para. 23.

(1) Intervention of the Court of Appeal With Regard to the Condition of Commonality of Issues (Article 575(1) C.C.P.)

[ 15 ] The Superior Court judge noted that several issues raised by the proposed class action, such as those related to prescription and to the existence of damages or of a causal connection, [ translation] "will have to be analyzed individually, which means that they cannot be the subject of common questions of law or of fact": para. 127. The Court of Appeal rightly found that this factor could not in and of itself justify dismissing the application for authorization: [ translation] "It is quite possible that the determination of common issues does not lead to the complete resolution of the case, but that it results instead in small trials at the stage of the individual settlement of the claims, which does not preclude a class action suit" (2017 QCCA 1460, at para. 55, quoting Collectif de défense des droits de la Montérégie (CDDM) v. Centre hospitalier régional du Suroît du Centre de santé et de services sociaux du Suroît, 2011 QCCA 826, at para. 23, quoted with approval in Vivendi, at para. 42; see also Sibiga, at paras. 115, 123 and 128).

[ 16 ] The Superior Court judge also stressed that there were differences between the situations of the class members, given that [ translation] "there could be an indeterminate number of places where wrongful acts are alleged to have been committed": para. 120. In addition, he stated that "[a]ll the other cases of the same nature in which authorization to institute a class action was granted . . . concerned a single institution in which acts had allegedly been committed by one or more well‑identified persons": para. 119 (emphasis added). As the judge himself noted at para. 119 (fn. 39) of his reasons, however, there is at least one exception. In Cornellier v. Province canadienne de la Congrégation de Ste‑Croix, 2011 QCCS 6670 (" Cornellier "), the Superior Court authorized the institution of a class action in a case that concerned sexual abuse, by members of the Congregation, of students who had attended Collège Notre‑Dame, Collège Saint‑Césaire and École Notre-Dame de Pohénégamook.

[ 17 ] But the Court of Appeal stressed that the Congregation was being sued [ translation] "not because of the establishments [it] operate[s], but because the assailants are members of the Congregation": para. 64; see also para. 97. As the Court of Appeal pointed out, "[t]he idea of an independent establishment, in the sense of a distinct enterprise, that the Judge accepted does not reflect the Congregation's reality", as its members, depending on their assignments, "could probably move from one establishment to another quite informally": para. 63; see, for example, Exhibit R‑8 ("table of victims"), A.R.C., at pp. 151‑52, regarding the situations of Brother Brunelle, who was assigned in succession to Orphelinat Saint‑Joseph and École artisanale Notre‑Dame‑des‑Monts, and Brother Bernard, who was assigned first to the Oratory and then to an establishment in Waterville. It should be mentioned in this regard that the Congregation reports having nearly 20 establishments in Quebec: see Exhibits R‑1 (amended), information statement for the Congregation in the enterprise register (2015), and R‑1.2, information statement for the Congregation in the enterprise register (2014), A.R.C., at pp. 135‑36 and 147‑48.

[ 18 ] However, all the class members were allegedly assaulted by members of the Congregation, regardless of the places where the assaults are alleged to have occurred. These members of the Congregation necessarily engaged in their activities with children with the consent or under the authority of the Congregation's officers (C.A. reasons, at para. 57); J.J. alleges that the Congregation is an institute of consecrated life that is subject to canon law (paras. 3.39 and 3.40 of the application); regarding the authority of the superior of a religious institute over the institute's members, see paras. 3.40.1 to 3.47 of the application; see also Exhibits R‑6, T. P. Doyle, Canon Law: What Is It? (2006) ("Doyle article (2006)"), A.R.O., vol. II, at p. 87, and R‑7, excerpts from the Code of Canon Law (French version only), canons 1395 and 1717, A.R.O., vol. II, at pp. 89‑93; finally, see by analogy John Doe v. Bennett, 2004 SCC 17, [2004] 1 S.C.R. 436, at paras. 21 and 27‑28; Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534, at paras. 44 and 46; M. H. Ogilvie, Religious Institutions and the Law in Canada (4th ed. 2017), at pp. 226 and 320. This means that all the class members clearly have an interest in having at least one common question decided, one "that would serve to advance the resolution of the litigation with respect to all the members of the group, and that would not play an insignificant role in the outcome of the case" (Vivendi, at para. 60), that is, the question of the Congregation's liability for the alleged assaults on children by some of its members who were engaging in activities with those children with the consent or under the authority of the Congregation's officers.

[ 19 ] The main issue here concerns liability based on a direct fault of the Congregation (or, more simply, its direct liability) for alleged "systemic" negligence in relation to alleged assaults on children by its members. The Court of Appeal concluded in this regard that [ translation] "the questions inherent in the issue of direct liability of the [Congregation] are on their own capable of clearly advancing the case toward a resolution of the litigation": para. 67 (emphasis added); see also para. 106. It should in fact be noted that all the common issues identified by J.J. that were authorized by the Court of Appeal actually related to the question whether the Congregation was negligent toward the victims of assaults allegedly committed by its members. J.J. alleges that the Congregation [ translation] "allowed [its] members . . . to sexually abuse minor children in public schools, in orphanages, at the Oratory . . . and in other places": para. 3.33 of the application. The Congregation also allegedly "subjected the victims to mental, religious and psychological duress by discouraging them from reporting the sexual abuse by [its] members": para. 3.34 of the application. J.J. further alleges that the Congregation "[was] aware of the sexual abuse by [its] members . . . but nevertheless hushed it up": para. 3.35 of the application. J.J. adds that the Congregation "knowingly and consciously chose to ignore the issue of sexual abuse of minor children by [its] members": para. 3.36 of the application.

[ 20 ] In sum, the Court of Appeal was right to intervene in the Superior Court's judgment, because the application judge had erred in law regarding the main components of art. 575(1) C.C.P. by emphasizing the differences between the class members that related to the fact that the assaults had allegedly been committed in [ translation] "an indeterminate number of places" (para. 120) rather than acknowledging that there was at least one common question stemming from the fact that all the class members were alleged to be victims of members of the Congregation: Vivendi, at para. 60.

(2) Intervention of the Court of Appeal With Regard to the Condition of Sufficiency of the Alleged Facts (Article 575(2) C.C.P.)

[ 21 ] The Superior Court judge was essentially of the view that no [ translation] "specific, tangible facts" were alleged in the application in support of J.J.'s claim that the Congregation knew about the assaults on children allegedly committed by its members: para. 103; see also para. 105. The judge discounted Exhibit R‑3, M. Benkert and T. P. Doyle, Religious Duress and Its Impact on Victims of Clergy Sexual Abuse, November 27, 2008 ("Benkert and Doyle article (2008)"), A.R.O., vol. II, at pp. 33‑71, and the Doyle article (2006) on the basis that they were "opinion papers": paras. 108‑9. He also found that the information in Exhibit R‑4, DVD of the Radio‑Canada program Enquête, September 30, 2010 ("DVD of the Enquête program"), "[was] . . . of no assistance for the purposes of this proceeding": para. 111. In addition, he attributed little — indeed no — probative value to the table of victims, particularly because J.J.'s counsel were involved in preparing it, and even stated that "it cannot be assumed at this stage that the people listed in [the table of victims] are in fact victims of members of [the Congregation] as opposed to victims of other religious communities": para. 57.

[ 22 ] With respect, the Superior Court judge clearly overstepped the bounds of his screening role by considering the merits of the case at the authorization stage: Vivendi, at paras. 4 and 37; Infineon, at paras. 40 and 68; Marcotte v. Longueuil, at para. 22; Sibiga, at paras. 71 and 80. A judge who rules at the authorization stage on the probative value of evidence presented in support of the application or who, in the absence of exceptional circumstances, refuses to take it into consideration makes an error of law warranting the Court of Appeal's intervention: Sibiga, at paras. 84‑86; Lambert (Gestion Peggy) v. Écolait ltée, 2016 QCCA 659, at para. 32. For example, in Charles, the Court of Appeal concluded that the judge had [ translation] "clearly depart[ed] from his role and the large and liberal approach he was required to take" in choosing "to exclude from the evidence information from filed scientific articles on the basis that they had been written to discredit homeopathy in general and that, as a result, they lacked credibility": para. 47; see also para. 17 ("The Superior Court judge [erred in discounting three scientific articles on the basis that they were too general, and in] considering at length the evidence before him, which he should have assumed to be true at this stage"); see also Belmamoun, at paras. 81‑83; Baulne v. Bélanger, 2016 QCCS 5387, at para. 53.

[ 23 ] The Court of Appeal was therefore right to state in the case at bar that the Superior Court judge had [ translation] "unduly limit[ed] the significance of [the table of victims] by ruling on its probative value": para. 79. It was also right to point out that the judge should, at the authorization stage, have assumed the fact that all the alleged assailants listed in the table of victims were members of the Congregation to be true, and that he had been wrong to speculate that the alleged assailants could have belonged to another religious community: para. 80. If the "arguable case" standard is applied to the table of victims, as the Court of Appeal did, that exhibit does set out "specific, tangible" facts that in themselves support J.J.'s claim that the Congregation knew about the alleged assaults on children by its members.

[ 24 ] The table of victims lists 41 victims who were allegedly assaulted by close to 30 members of the Congregation over a period of more than 40 years in more than 20 institutions. Some of the alleged assailants were in positions of authority within the Congregation, as they held the title of Brother Superior; see also, on the list of alleged assailants, the principal of École Ste‑Brigide, who was a member of the Congregation, and Superior D.L. I agree with the Court of Appeal's conclusion that the combination of all these pieces of evidence — the number of assaults reported in the table of victims, the number of religious members involved, the length of the period covered by the reports and the number of places where assaults allegedly occurred — supports an argument, at the authorization stage, that it might be possible at the trial on the merits to draw from them an inference that the Congregation knew or could not have been unaware that some of its members were assaulting children: C.A. reasons, at paras. 59‑60 and 83‑86. Indeed, at the authorization stage, the judge must pay particular attention not only to the alleged facts but also to any inferences or presumptions of fact or law that may stem from them and can serve to establish the existence of an [ translation] "arguable case": L. Chamberland, ed., Le grand collectif: Code de procédure civile — Commentaires et annotations (2nd ed. 2017), at p. 2480; see, for example, Sibiga, at paras. 91‑93; Société québécoise de gestion collective des droits de reproduction (Copibec) v. Université Laval, 2017 QCCA 199, at para. 75.

[ 25 ] I therefore also agree with the Court of Appeal's conclusion that [ translation] "the simple prima facie evidence that close to 30 members of the Congregation — fathers and brothers, including some who held the title of Brother Superior (and were therefore in positions of authority) — sexually abused minor children over a significant period of time is indicative of the probable existence of a modus operandi on the assailants' part": para. 83. In other words, J.J.'s claim that the Congregation knew about the assaults on children by its members must be considered in light of "concrete", "specific" or "tangible" facts drawn from the table of victims:

[ translation] In sum, the allegations relating to knowledge on the Congregation's part were, when the evidence discussed above is taken into account in conjunction with the hierarchy characteristic of traditional religious organizations, sufficient to show an arguable case with respect to the second condition of article 575 C.C.P. [Emphasis added.]

(C.A. reasons, at para. 86)

[ 26 ] In addition, the Superior Court judge should not, in light of the Benkert and Doyle article (2008), which had been presented to him, have attached so much importance to the failure, in the application itself, to allege "concrete", "specific" or "tangible" facts in support of J.J.'s claim that the Congregation had known about the assaults on children by its members. But the judge refused to consider the content of a scientific article of that nature. The refusal to do so was an error, as I explained above, because the article contained evidence that was relevant to this case: on this point, see C.A. reasons, at paras. 88‑90. Thus, it explains that mental duress resulting from the relationship of authority between the priest and the child is often the reason sexual abuse is not reported: see A.R.O., vol. II, at pp. 40 and 60. And J.J. in fact alleges in this case that he never spoke about being assaulted as a child until 2011: paras. 3.18 to 3.20 of the application. It goes without saying that he of course did not report the assaults at the time of the events. Yet a failure to report at the time of the events can itself be the reason why there are no "concrete", "specific" or "tangible" facts on which to base an allegation that the officers in question knew about the assaults. (For example, in Bennett, the victims' claim that the bishops responsible for supervising the abusive priest knew about the sexual abuse was supported by the fact that reports had been made at the time of the events: paras. 1 and 8.) Nevertheless, that does not mean that such knowledge does not really exist or cannot be inferred from other evidence. The Benkert and Doyle article (2008) also supports the allegation made at para. 3.34 of the application that the Congregation was able to [ translation] "subjec[t] the victims to mental, religious and psychological duress by discouraging them from reporting the sexual abuse by [its] members": see A.R.O., vol. II, at pp. 60 and 62‑63.

[ 27 ] Finally, the Superior Court judge clearly erred in finding that the DVD of the Enquête program was irrelevant on the basis that the information in it was [ translation] "of no assistance for the purposes of this proceeding": para. 111. It is true that the DVD refers at length to sexual assaults committed at Collège Notre‑Dame, which were the subject of a settlement in Cornellier; see also Cornellier v. Province canadienne de la Congrégation de Ste‑Croix, 2013 QCCS 3385. However, the DVD is not limited to those assaults. Rather, it supports the claim of a general knowledge of sexual abuse and a refusal to act on the part of the Congregation's officers. There is evidence to that effect that specifically supports the allegation made in para. 3.35 of the application that the Congregation's officers [ translation] "were aware of the sexual abuse by [its] members . . . but nevertheless hushed it up", and it comes from a former brother of the Congregation, W.K., who personally knew about several sexual assaults and about his community's inaction. This former brother stated unequivocally that the Congregation's inaction regarding the sexual abuse of children was not confined to Collège Notre‑Dame and that the Congregation's officers knew that abuse was also occurring at other places where religious members were engaging in activities with children (minute 21 of the DVD); victims who attended institutions other than Collège Notre‑Dame were also mentioned at minute 24 of the DVD ([ translation] "in one or another of the institutions managed by Holy Cross"). In sum, the DVD attests to the systemic nature of sexual abuse by members of the Congregation in various institutions.

[ 28 ] The DVD of the Enquête program also reveals that Brother C.H. was allegedly protected by the Congregation even though more than one child had accused him of sexual abuse. (On the protection offered to assailants by the officers of religious organizations, see the Benkert and Doyle article (2008), A.R.O., vol. II, at pp. 39 and 70.) Brother C.H. is mentioned in the table of victims in association with acts he is alleged to have committed against victim B.L. at École Côte‑des‑Neiges and/or the Oratory. The senior officer of the Congregation who is alleged to have protected Brother C.H. by keeping silent about C.H.'s alleged sexual abuse is none other than C.S., who is a director of the Congregation and of Corporation Jean‑Brillant: information statements for the Congregation in the enterprise register (2015) and (2014) and information statement for Corporation Jean‑Brillant in the enterprise register (2014), A.R.C., at pp. 134, 141 and 146. Thus, the DVD supports the allegation that at least one senior officer of the Congregation may have had actual knowledge of the alleged sexual abuse by one of the assailants who is expressly identified in the table of victims. The Court of Appeal was therefore right to stress that the DVD was relevant at the authorization stage and therefore should not have been discounted by the Superior Court judge: para. 93.

(3) Intervention of the Court of Appeal With Regard to the Condition of J.J.'s Status as Representative Plaintiff for the Class Members (Article 575(4) C.C.P.)

[ 29 ] The Superior Court judge found that J.J. did not have [ translation] "the competence needed to properly represent the class members": para. 29. In his opinion, J.J. had not personally taken any steps to verify, for example, the institutions where assaults were alleged to have taken place and the number of people in the proposed class: para. 31. The judge also noted that the application for authorization had been initiated by J.J.'s lawyers: para. 31. In addition, J.J. wished to remain anonymous and to minimize possible contacts with other class members: paras. 33 and 35. Because J.J.'s role did not involve "more than simply being a figurehead", he was not an appropriate representative plaintiff: paras. 28 and 34.

[ 30 ] In making this finding, the Superior Court judge relied heavily on two judgments on motions that have since been set aside by the Court of Appeal: Sibiga v. Fido Solutions inc., 2014 QCCS 3235, and Charles v. Boiron Canada inc., 2015 QCCS 312. Although the Superior Court judge cannot be faulted for relying on those two judgments, given that he did not at the time of his ruling have the benefit of the Court of Appeal's decisions reversing them, his analysis with respect to the condition of J.J.'s status as representative plaintiff must nonetheless be reviewed on appeal in light of those recent decisions, as the dissenting Court of Appeal judge in fact recognized: para. 138. Thus, the Superior Court judge clearly erred in concluding that the leading role played by J.J.'s lawyers in bringing the application for authorization was inconsistent with J.J.'s status as representative plaintiff for the members of the proposed class: Sibiga, at paras. 101‑2; Charles, at paras. 53‑56.

[ 31 ] The Superior Court judge did, however, have the benefit of the principles from Lévesque v. Vidéotron, s.e.n.c., 2015 QCCA 205, in which the Court of Appeal had stated that the application judge had erred in faulting the applicant for failing to try to identify other members of the class or determine how many of them there might be; see also Martel v. Kia Canada inc., 2015 QCCA 1033, at para. 29, another case in which the Court of Appeal tempered the applicant's duty to investigate. These same criticisms should therefore not have been levelled against J.J. This error also influenced the Superior Court judge's analysis with respect to other conditions such as that of the composition of the class set out in art. 575(3) C.C.P., since he also expressed the opinion, in discussing that condition, that [ translation] "the lack of any information together with J.J.'s failure to investigate or to take any steps whatsoever" meant "that the statement in [para. 4.1 of the application] regarding the possible number of victims" was only an "inference" or "hearsay": para. 73. The judge stated that "deficiencies in an investigation by a representative plaintiff" could "be fatal where meeting the condition set out in [art. 575(3) C.C.P.] is at issue": para. 74. He had in fact indicated that he would begin with the analysis concerning the condition of J.J.'s status as representative plaintiff, because the reasons why J.J.'s application failed with respect to that condition also justified dismissing it on other grounds: paras. 22‑23.

[ 32 ] Thus, the Court of Appeal was amply justified in intervening with regard to the condition of J.J.'s status as representative plaintiff. As the Court of Appeal noted, at para. 104, three criteria must be considered in deciding whether an applicant should be granted this status. The applicant must show (a) an interest in the suit, (b) competence and (c) an absence of conflict with the class members (P.‑C. Lafond, Le recours collectif comme voie d'accès à la justice pour les consommateurs (1996), at p. 419; Infineon, at para. 149; Union des consommateurs v. Air Canada, 2014 QCCA 523, at para. 82). These three criteria are to be interpreted "liberally", which means that "[n]o proposed representative should be excluded unless his or her interest or competence is such that the case could not possibly proceed fairly": Infineon, at para. 149. In my view, the Court of Appeal was right to find, at para. 108, that J.J. met the legal requirements. The Court of Appeal was also right to point out that it is perfectly normal in this type of class action for sexual assault victims, including the representative plaintiff, to take advantage of the right to anonymity and for contact with members to be maintained primarily through the representative plaintiff's lawyers: para. 105, quoting A v. Frères du Sacré‑Cœur, 2017 QCCS 34, at paras. 71 and 79.

(4) Conclusion on the Court of Appeal's Intervention

[ 33 ] There is no doubt that the Superior Court judge made numerous errors, of fact and of law, with respect to all the conditions of art. 575 C.C.P. Several of his errors, such as failing to identify at least one issue common to all the class members — namely the issue of the Congregation's "systemic" negligence regarding assaults on children allegedly committed by its members — or discounting the DVD of the Enquête program and the table of victims, necessarily influenced his decision to deny the institution of the class action against the Oratory. What is more, the Superior Court judge stated — and this is worth repeating — that [ translation] "the reasons that justify denying the action against the Congregation . . . are the same as the ones that apply to the action against the Oratory": para. 138 (emphasis added).

[ 34 ] Given the numerous errors made by the Superior Court judge with respect to all the conditions of art. 575 C.C.P., the Court of Appeal was clearly right to "substitute its own assessment" for that of the application judge with respect to all the conditions: Vivendi, at para. 35. It must now be asked whether the Court of Appeal's decision to authorize the institution of the class action against both the Congregation and the Oratory is itself tainted by an error that justifies a review by this Court.

B. Is the Court of Appeal's Decision to Authorize the Institution of the Class Action Against Both the Congregation and the Oratory Tainted by an Error That Justifies a Review?

[ 35 ] Before I discuss the conditions of commonality of issues and sufficiency of the alleged facts, which as I mentioned above are the only ones at issue in the Oratory's appeal (aside from its arguments concerning the supposed "forfeiture" of J.J.'s personal action that, it is argued, affects his status as an appropriate representative plaintiff for the class members), a few words about the "connection" between the Oratory and the Congregation are in order. I will conclude my analysis by addressing the fact that only the Oratory is being sued together with the Congregation.

(1) "Connection" Between the Oratory and the Congregation

[ 36 ] At the hearing in this Court, the Oratory disputed the existence of any "connection" between it and the Congregation. But it is important to recall the Court of Appeal's finding that the Oratory's affairs [ translation] "were managed in whole or in part by the Congregation's members": para. 111; see also paras. 14, 22 and 64. Moreover, the dissenting Court of Appeal judge did not dispute "[t]he . . . fact that the Oratory is managed by members of the Congregation": para. 137. She merely questioned the legal consequence that fact might have. In my opinion, the Oratory has not shown how the Court of Appeal's finding on this point is tainted by an error that justifies a review.

[ 37 ] In his application, J.J. alleges that the Congregation founded the Oratory: para. 3.3. The Act to incorporate "St. Joseph's Oratory of Mount Royal", S.Q. 1916, c. 90 ("1916 Act"), is attached to the application, and the following excerpt from that Act — from its preamble in particular — confirms his allegation:

WHEREAS the Reverend Georges Dion of the city of Montreal, the Reverend Elphège Hébert of the town of St. Laurent, the Reverend Absalon Renaud of the city of Montreal, and Messrs. Alfred Bessette and Augustin LeRoy, both of the city of Montreal, in religion respectively Brother André and Brother Marie‑Auguste, all five members of the Congregation of the Holy Cross, have by their petition represented that a chapel dedicated to the devotion of St. Joseph has been established and maintained for many years past on the slope of Mount Royal in the city of Montreal, and that the faithful have been in the habit of frequenting it in large numbers; that in order to assure the permanent maintenance of the said chapel and to allow the extension of its sphere of action, it is expedient to incorporate the petitioners for the purpose of acquiring and maintaining the said chapel and thereby promoting the Roman Catholic faith and the welfare of souls by the propagation of the devotion to St. Joseph;

Whereas the petitioners have prayed that an act for the purpose aforesaid be passed; and whereas it is expedient to grant their prayer;

Therefore His Majesty, with the advice and consent of the Legislative Council and of the Legislative Assembly of Quebec, enacts as follows:

1. The said Reverend Georges Dion, Reverend Elphège Hébert, Reverend Absalon Renaud, Brother André and Brother Marie‑Auguste, and all persons who hereafter associate themselves with them, and their successors, are and shall be constituted a corporation for the purpose of promoting the Roman Catholic faith and the welfare of souls by the propagation of the devotion to Saint Joseph under the name of "St. Joseph's Oratory of Mount Royal."

Furthermore, the following comments are made at the very beginning of the DVD of the Enquête program: [ translation] "Holy Cross officers knew very well what was happening", and "[t]his scandal broke at a time when the Pope was about to canonize the most illustrious of the community's members, Brother André, the builder of St. Joseph's Oratory" (emphasis added). A little later, the speaker also refers to a "wealthy, influential and prestigious congregation" whose members "built a monument, St. Joseph's Oratory, and . . . will [soon] have among them a saint, Brother André".

[ 38 ] As well, s. 2 of the 1916 Act provided that the Oratory's affairs were to be managed by five directors, all of them members of the Congregation:

2. The affairs of the corporation shall be managed by five directors, who shall be chosen from amongst its members who are at the same time members of the Congregation of the Holy Cross, at a general meeting held for that purpose.

[ 39 ] In 1974, the Oratory was continued under the Religious Corporations Act, S.Q. 1971, c. 75 (now the Religious Corporations Act, CQLR, c. C‑71): see Exhibit R‑2, information statement for the Oratory in the enterprise register (2013), A.R.O., vol. II, at p. 23. For the entire period before 1974, however, there is nothing in the record to suggest that the Oratory was not governed by the 1916 Act. And all the assaults allegedly committed at the Oratory that are reported in the table of victims are in fact dated earlier than 1974, when the Oratory's affairs were, according to the evidence submitted at this stage, managed entirely by members of the Congregation.

[ 40 ] As for the period after 1974, it is true that in the information statement for the Oratory in the enterprise register from 2013, the Oratory reported having nine directors — not five or seven [^2] as the 1916 Act would have it — and it is unclear whether they were all members of the Congregation. [^3] Nevertheless, as of the date in question, one of the Oratory's directors, L.D., was also a director of the Congregation and of Corporation Jean‑Brillant: see A.R.O., vol. II, at p. 24; information statements for the Congregation in the enterprise register (2015) and (2014) and information statement for Corporation Jean‑Brillant in the enterprise register (2014), A.R.C., at pp. 134, 141 and 146. What is more, Maison Sainte‑Croix, one of the establishments reported by the Congregation, was located at the same address as the Oratory (one of the Congregation's directors in fact resided there): information statements for the Congregation in the enterprise register (2015) and (2014), A.R.C., at pp. 134, 136, 146 and 148. The Congregation also used certain names in Quebec that were associated with the Oratory, such as "Le Grand Saint‑Joseph", "Maison Frère‑André", "Résidence Alfred‑Bessette" and "Maison Saint‑Joseph": information statements for the Congregation in the enterprise register (2015) and (2014), A.R.C., at pp. 137‑38 and 149‑50.

[ 41 ] The Oratory will still, should it wish to do so, be able to raise a defence at the trial on the merits in order to deny the existence of any "connection" between it and the Congregation, but it is not appropriate to consider possible defences in this regard at the authorization stage: Sibiga, at para. 83; Brown v. B2B Trust, 2012 QCCA 900, at para. 40; see also Carrier v. Québec (Procureur général), 2011 QCCA 1231, at para. 37. Moreover, if it appears that a distinction needs to be drawn between assaults allegedly committed at the Oratory before 1974 and those allegedly committed after that, the trial judge can, "even on [his or her] own initiative, modify or divide the class at any time": art. 588 para. 2 C.C.P. [^4]

[ 42 ] Finally, if any doubt remains at this stage as to the existence of a "connection" between the Oratory and the Congregation in light of the parties' contradictory submissions on this point, the applicant, J.J., should in principle be given the benefit of the doubt: Lambert (Gestion Peggy), at para. 38 ([ translation] "should the application judge be so unfortunate as to be faced with contradictory facts, he or she must favour the general principle that the facts in the motion for authorization must be assumed to be true unless they seem implausible or clearly wrong"); Harmegnies, at para. 46 ([ translation] "the applicant must be given the benefit of the doubt"); Sibiga, at para. 51 ("courts should err on the side of caution and authorise the action where there is doubt as to whether the standard has been met"); Charles, at para. 43; see also per Gascon J. (then of the Superior Court) in Adams v. Banque Amex du Canada, 2006 QCCS 5358, at para. 23 ([ translation] "any doubt must be resolved in favour of the applicants, that is, in favour of authorizing the action"); S. E. Finn, L'action collective au Québec (2016), at p. 53; P.‑C. Lafond, Le recours collectif, le rôle du juge et sa conception de la justice: impact et évolution (2006), at pp. 115‑16. This cautious approach is justified by the principle that merely being named as a defendant in a class action does not in and of itself constitute irreparable harm, since the trial judge will still have free rein to dismiss the action after hearing all the evidence:

[ translation] Contrary to the position taken by companies and their counsel, the authorization of a class action does not impair the respondent's rights, "since authorizing an action is not the same as deciding it". Defendants will have the opportunity to assert their rights fully at the trial on the merits, as in any other action. A judgment on authorization is merely a preliminary decision that could be varied at the trial, or even before, and does not prejudge the final outcome of the litigation.

(Lafond (2006), at pp. 116‑17)

(2) Condition of Commonality of Issues (Article 575(1) C.C.P.)

(a) Applicable Law

[ 43 ] Article 575(1) C.C.P. provides that the institution of a class action cannot be authorized unless the court finds that "the claims of the members of the class raise identical, similar or related issues of law or fact". This is the condition of "commonality", which "applies not only in Quebec law, but also in that of all the common law provinces of Canada": Vivendi, at para. 38. The Court studied the condition of "commonality" in depth in Vivendi. It stressed that the test that applies in Quebec law appears to be less stringent than the one that is applied in the common law provinces, because the phrase "identical, similar or related issues of law or fact" used by the Quebec legislature does not align perfectly with the expression "common issues" or with the "common issue" condition of the common law provinces: Vivendi, at paras. 52‑53.

[ 44 ] Moreover, it can be seen from the Quebec courts' interpretation of art. 575(1) C.C.P. that their "approach to the commonality requirement has often been broader and more flexible than the one taken in the common law provinces", as "[they] propose a flexible approach to the common interest that must exist among the [class]'s members": Vivendi, at para. 54, citing Lafond (1996), at p. 408; see also paras. 56‑58. In Infineon, the Court added that "[t]here is no requirement of a fundamental identity of the individual claims of the proposed [class]'s members", given that, "[a]t the authorization stage, the threshold requirement for common questions is low": para. 72. Thus, "even a single identical, similar or related question of law would be sufficient to meet the common questions requirement . . . provided that it is significant enough to affect the outcome of the class action": Infineon, at para. 72. In addition, "[ translation] [t]he fact that the situations of all members of the [class] are not perfectly identical does not mean that the [class] does not exist or is not uniform": Infineon, at para. 73, quoting Guilbert v. Vacances sans Frontière Ltée, 1991 CanLII 2869 (QC CA), [1991] R.D.J. 513 (C.A.). Nor, as a result of Bank of Montreal v. Marcotte, is it necessary for each member of the class to have a personal cause of action against each of the defendants. J.J. is therefore right that the fact that not all the class members have a personal cause of action against the Oratory is no bar to authorizing the institution of a class action against it: R.F.O., at para. 52.

(b) Application of the Law to the Facts of the Case

[ 45 ] In Vivendi, the Court stated, citing Dutton and Rumley, that "a question will be considered common if it can serve to advance the resolution of every class member's claim": para. 46 (emphasis added). The Oratory's challenge with respect to the condition of "commonality" is essentially based on this passage from Vivendi (A.F.O., at para. 65 (fn. 73)), as it argues that the Court of Appeal has not shown how the answer to any question relevant to the action against it would in any way advance the action of the class members who have no connection with the Oratory: A.F.O., at para. 59.

[ 46 ] I cannot agree with the Oratory, and this is so even if I were to assume that its strict interpretation of the Court's statement in Vivendi is correct.

[ 47 ] First, it is not entirely accurate to state, as the Oratory does in its factum (at para. 75), that there can be no common issue that connects the Oratory to a victim of an alleged assault by a member of the Congregation at a place other than the Oratory. On the contrary, the table of victims shows that there may in fact be victims of assaults allegedly committed by members of the Congregation at places other than the Oratory whose assailants are also alleged to have assaulted victims at the Oratory. For example, the name of Brother Bernard is associated with the institution in Waterville (1951‑52) and with the Oratory (1958‑60): table of victims; C.A. reasons, at para. 112. It should also be noted that J.J. is not the only class member with a personal cause of action against the Oratory. There are four other victims who have come forward at this point who also claim to have been assaulted at the Oratory: table of victims; C.A. reasons, at para. 112.

[ 48 ] Second, J.J.'s personal cause of action against the Oratory is primarily based on it being directly liable for assaults allegedly committed at the Oratory (and not on liability for the act of another person). As I have already mentioned, all the common issues identified by J.J. that were authorized by the Court of Appeal actually related to the question whether the Oratory and the Congregation were negligent toward sexual assault victims. J.J. alleges that the Oratory [ translation] "allowed members of the Congregation . . . to sexually abuse minor children . . . at the Oratory": para. 3.33 of the application. The Oratory also allegedly "subjected the victims to mental, religious and psychological duress by discouraging them from reporting the sexual abuse by members of the Congregation": para. 3.34 of the application. J.J. further alleges that the Oratory "[was] aware of the sexual abuse by members of the Congregation . . . but nevertheless hushed it up": para. 3.35 of the application. Lastly, he adds that the Oratory "knowingly and consciously chose to ignore the issue of sexual abuse of minor children by members of the Congregation": para. 3.36 of the application.

[ 49 ] One might ask what it means, for a legal person such as the Oratory, "to be aware" of the alleged sexual abuse of children, to "knowingly and consciously choose to ignore" that abuse, or to "hush it up". The answer is simple, as this can mean only one thing: the Oratory's directors were aware of the alleged sexual abuse of children, and the Oratory's directors are alleged to have knowingly and consciously chosen to ignore that abuse or to hush it up. As J.‑L. Baudouin, P. Deslauriers and B. Moore explain:

[ translation] Because a legal person does not have a will of its own and therefore has no sense of judgment, one might ask whether it can be held liable independently of the individual liability of its representatives or of the natural persons who make it up or run it. In civil law, unlike in the criminal law, no distinction is drawn between natural persons and legal persons where the accountability for fault is concerned. In principle, therefore, given what is said in articles 300 and 1457 C.C., a legal person can be held directly liable if the wrongful act that caused damage was committed by one of its governing organs acting within the scope of its duties, or by a person for whom it is responsible by law. In practice, however, it is more common for a legal person to be sued as a principal for a wrongful act committed by one of its agents, employees or servants. The courts have on many occasions recognized the principle of extracontractual liability of legal persons.

With the provisions of the Civil Code, it can now be asked which organs of a legal person can give rise to direct extracontractual liability. A principle appears to emerge from article 311 C.C. A director, first of all, is, as provided for in article 321 C.C., considered to be a mandatary, which means that, under articles 2160 and 2164 C.C., the legal person is liable for his or her acts, but probably on the basis of liability for the act of another person. As for the board of directors, it may also directly expose the legal person to liability, given that it manages the affairs of the legal person and exercises all the powers necessary for that purpose on the legal person's behalf (art. 335 C.C.). However, it seems harder to imagine that the legal person would be exposed to direct liability for an act resulting from a general meeting (arts. 345 et seq. C.C.). [Emphasis added.]

( La responsabilité civile (8th ed. 2014), at Nos. 1‑118 and 1‑119)

[ 50 ] Thus, the allegations relating to direct liability of the Oratory actually concern allegedly wrongful conduct on its directors' part. As the Court of Appeal noted, at para. 111, [ translation] "[the Oratory's] affairs were managed in whole or in part by the Congregation's members" (see also paras. 14, 22 and 64). In other words, the allegations relating to direct liability of the Oratory are actually allegations relating to faults of members of the Congregation, and more specifically, allegations relating to faults of members of the Congregation acting as directors of the Oratory, who are alleged to have failed to put a stop to the sexual abuse or, worse, to have covered it up. The question of faults allegedly committed by the Congregation's members is undeniably one that is common to all the members of the class. This means that, contrary to what the Oratory argues, any finding of direct liability of the Oratory — because it would be a finding of faults of members of the Congregation acting as directors of the Oratory — will advance the action of each member of the class, particularly in that it will tend to establish the existence of "systemic" negligence within the Congregation in relation to the alleged sexual abuse of children.

[ 51 ] This reasoning might not apply in a case concerning business corporations or legal persons of some other type. But the question does not need to be addressed in the context of these appeals, as the Oratory and the Congregation are not business corporations, but special legal persons. The Oratory is "a group of persons who form a religious body": definition of "church", s. 1(c) of the Religious Corporations Act; see information statement for the Oratory in the enterprise register (2013), A.R.O., vol. II, at p. 23. And the Congregation is "a group of religious who are members of a religious community": definition of "congregation", s. 1(a) of the Religious Corporations Act; see Exhibit R‑1, information statement for the Congregation in the enterprise register (2009), and information statements for the Congregation in the enterprise register (2015) and (2014), A.R.C., at pp. 130, 133 and 145. As the Court of Appeal pointed out, traditional religious organizations are essentially characterized by strong solidarity among their members as a result [ translation] "[of] the temporal and spiritual hierarchical relationship that inevitably exists between a religious member and his or her religious community": C.A. reasons, at para. 57; see also the Doyle article (2006); excerpts from the Code of Canon Law; Bennett, at paras. 21 and 27‑28; Bazley, at paras. 44 and 46; Ogilvie, at pp. 226 and 320.

[ 52 ] Under the 1916 Act, it was the Oratory's five founding "petitioners" — "all five members of the Congregation of the Holy Cross" — together with "all persons who hereafter associate themselves with them, and their successors", who were constituted a corporation under the name of "St. Joseph's Oratory of Mount Royal". These excerpts from the 1916 Act suggest that those members of the religious community known as the Congregation of Holy Cross were themselves, and in that capacity, constituted a corporation under the name of "St. Joseph's Oratory of Mount Royal". In this sense, the Oratory is simply one of the faces of the religious community known as the Congregation of Holy Cross, and it was constituted a corporation in 1916, at a time when (a) the Religious Corporations Act was not yet in force (see S.Q. 1971, c. 75) and (b) the religious community known as the Congregation of Holy Cross as a whole was, according to the evidence presented at this stage, not yet carrying on its activities in any form of unified religious corporation: see An Act to incorporate Les Religieux de Ste. Croix, S.Q. 1935, c. 152; An Act to amend the charter of Les Religieux de Sainte‑Croix, S.Q. 1947, c. 121; An Act to incorporate Les Frères de Sainte‑Croix, S.Q. 1947, c. 122.

[ 53 ] Moreover, it can be seen from the scheme of the Religious Corporations Act as a whole that in the case of a "congregation", that is, a "group of religious who are members of a religious community" (s. 1(a)), there can only be one "corporation whose objects are to organize, administer and manage a congregation": s. 14. The letters patent of such a corporation may thus provide that the corporation's affairs "shall be administered by the person exercising the function of superior of the congregation or any equivalent function": s. 8.1. In addition, s. 13 of the Act provides that "[a]ny member of a corporation whose objects are to organize, administer and maintain a congregation may agree to devote his activities gratuitously to the service of the corporation and undertake to transfer to it all salary, remuneration or other advantages which are the result of his work, as long as he remains a member of the corporation". Under the Act, a corporation like this also has powers over the congregation's members that are inconsistent with the existence of more than one "corporation whose objects are to organize, administer and maintain a congregation". For example, s. 14 of the Religious Corporations Act provides that such a corporation "shall represent its members and may, in its name but for their benefit, and with their consent, except in cases where it is impossible to obtain it, exercise their civil rights respecting the property they may own or acquire". Similarly, s. 14.1 provides that "[w]here no protection mandate is given . . . the corporation whose objects are to organize, administer and maintain the congregation shall have the mandate and responsibility to fully ensure the care and administer the property of the member for as long as the member remains a member of the congregation".

[ 54 ] In short, the Religious Corporations Act confirms that the members of the religious community known as the Congregation of Holy Cross who worked at the Oratory as officiating priests (like Father Bernard, who allegedly assaulted J.J.) or as directors may have remained closely connected with the Congregation. With respect, I cannot accept my colleague Gascon J.'s assertion that the Oratory was not "under the control" of the religious community known as the Congregation of Holy Cross: Gascon J.'s reasons, at para. 180. The Oratory was clearly under the Congregation's control, not only because all of the Oratory's directors were members of the Congregation at the time of the events, but also because [ translation] "[of] the temporal and spiritual hierarchical relationship that inevitably exists between a religious member and his or her religious community" and the privileges (enjoyment of services provided gratuitously, transfer of salary, remuneration or any other advantages, etc.) and extraordinary powers (exercise of civil rights, protection mandate or mandate to administer property, etc.) the Congregation may have had in relation to its members.

[ 55 ] I will say no more in these reasons about the complex concepts of religious "organizations" or "corporations, "church" and "congregation". A court may of course decide a pure question of law at the authorization stage if the outcome of the proposed class action depends on its doing so, and to some extent the court must also interpret the legislation to determine whether the proposed class action is "frivolous" or "clearly wrong" in law: Carrier, at para. 37; Trudel v. Banque Toronto‑Dominion, 2007 QCCA 413, at para. 3; Fortier v. Meubles Léon ltée, 2014 QCCA 195, at paras. 89‑91; Toure v. Brault & Martineau inc., 2014 QCCA 1577, at para. 38; Lambert v. Whirlpool Canada, l.p., 2015 QCCA 433, at para. 12; Groupe d'action d'investisseurs dans Biosyntech v. Tsang, 2016 QCCA 1923, at para. 33; Finn (2016), at p. 170. Aside from such situations, however, it is in principle not appropriate at the authorization stage for the court to "make any determination as to the merits in law of the conclusions, in light of the facts alleged": Comité régional des usagers des transports en commun de Québec v. Quebec Urban Community Transit Commission, 1981 CanLII 19 (SCC), [1981] 1 S.C.R. 424, at p. 429; Nadon v. Anjou (Ville), 1994 CanLII 5900 (QC CA), [1994] R.J.Q. 1823 (C.A.), at pp. 1827‑28; Infineon, at para. 60. In the instant case, it is enough to note that the issue of direct liability of the Congregation for alleged sexual abuse of children by its members is difficult to distinguish from the issue of direct liability of the Oratory, which is but one of many faces of the Congregation, for the same alleged sexual abuse of children by members of the same religious community. Even if these issues are not "identical . . . issues of law or fact", they are certainly at least "similar" or "related" issues within the meaning of art. 575(1) C.C.P. As the Court of Appeal explained in Comité d'environnement de La Baie:

. . . Article 1003(a) [now art. 575(1)] does not require that all of the questions of law or of fact in the claims of the members be identical or similar or related. Nor does the article even require that the majority of these questions be identical or similar or related. From the text of the article, it is sufficient if the claims of the members raise some questions of law or of fact that are sufficiently similar or sufficiently related to justify a class action. [Emphasis in original; p. 659.]

(3) Condition of Sufficiency of the Alleged Facts (Article 575(2) C.C.P.)

(a) Applicable Law

[ 56 ] Article 575(2) C.C.P. provides that the facts alleged in the application must "appear to justify" the conclusions being sought. This condition, which was not included in the original bill on class actions, was added in response to pressure from certain companies [ translation] "that feared it would give rise to a significant volume of frivolous actions": V. Aimar, "L'autorisation de l'action collective: raisons d'être, application et changements à venir", in C. Piché, ed., The Class Action Effect (2018), 149, at p. 156 (emphasis added); P.‑C. Lafond, "Le recours collectif: entre la commodité procédurale et la justice sociale" (1998‑99), 29 R.D.U.S. 4, at p. 24. It is now well established that at the authorization stage, the role of the judge is to screen out only those applications which are "frivolous", "clearly unfounded" or "untenable": Sibiga, at paras. 34 ("the judge's function at the authorization stage is only one of filtering out untenable claims" (emphasis added)), 52 ("[a] motion judge should only weed out class actions that are frivolous or have no prospect of success" (emphasis added)) and 78 ("it was enough to show that the appellant's claim was not a frivolous one and that, at trial, she would have an arguable case to make on behalf of the class" (emphasis added)); see also Charles, at para. 70; Lafond (2006), at pp. 112 and 116; see also Fortier, at para. 70; Oubliés du viaduc de la Montée Monette v. Consultants SM inc., 2015 QCCS 3308, at para. 42. As this Court explained in Infineon, "the court's role is merely to filter out frivolous motions", which it does "to ensure that parties are not being subjected unnecessarily to litigation in which they must defend against untenable claims": para. 61 (emphasis added); see also paras. 125 and 150.

[ 57 ] This position was strengthened by the statutory amendments of 2003: An Act to reform the Code of Civil Procedure, S.Q. 2002, c. 7, s. 150. At that time, the legislature abolished the requirement that an affidavit be filed in support of the application, as a result of which the applicant had had to submit to examination as a deponent at the authorization stage. In addition, the defendant may now only contest the application orally, and the judge may allow relevant evidence to be submitted at the hearing: Infineon, at para. 66; see also R. Wagner, "How the Class Action has evolved to become the Procedural Tool it is today", in C. Piché, ed., The Class Action Effect (2018), 273, at p. 282; Ministère de la Justice, Commentaires de la ministre de la Justice: Code de procédure civile, chapitre C-25.01 (2015), at p. 419. As the Court of Appeal explained in Sibiga, at para. 50: "The purpose of those amendments [by the Quebec legislature in 2003] 'was to ensure that the authorization stage be used to filter out only the most frivolous and unsubstantiated claims and to ensure that the authorization process was not being used by judges to render pre‑emptive decisions on the merits'", quoting E. Yiannakis and N. Boudreau, "'Paradise Lost'? Rethinking Quebec's Reputation as a Haven for Class Actions" (2014), 9 Can. Class Action Rev. 385, at p. 392 (emphasis added).

[ 58 ] The applicant's burden at the authorization stage is simply to establish an "arguable case" in light of the facts and the applicable law: Infineon, at paras. 65 and 67; see also Vivendi, at para. 37; Marcotte v. Longueuil, at para. 23. This is a "low threshold": Infineon, at para. 66. The applicant need establish only a mere "possibility" of succeeding on the merits, as not even a "realistic" or "reasonable" possibility is required: Infineon, at paras. 80, 100, 101, 130, 136 and 144; Charles, at para. 70; Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18, [2015] 2 S.C.R. 106, at paras. 19, 35, 36 and 38; Asselin v. Desjardins Cabinet de services financiers inc., 2017 QCCA 1673, at paras. 29‑31. The legal threshold requirement under art. 575(2) C.C.P. is a simple burden of "demonstration" that the proposed "legal syllogism" is tenable: Pharmascience inc., at para. 25; Martin v. Société Telus Communications, 2010 QCCA 2376, at para. 32; Infineon, at para. 61. As I pointed out above, it is in principle not appropriate at the authorization stage for the court to make any determination as to the merits in law of the conclusions in light of the facts being alleged. It is enough that the application not be "frivolous" or "clearly wrong" in law, or in other words, the applicant must establish "a good colour of right": Guimond v. Quebec (Attorney General), 1996 CanLII 175 (SCC), [1996] 3 S.C.R. 347, at paras. 9‑11; Berdah v. Nolisair International Inc., 1991 CanLII 3579 (QC CA), [1991] R.D.J. 417 (C.A.), at pp. 420‑21, per Brossard J.A.; Infineon, at para. 63. As for the evidentiary threshold requirement under art. 575(2) C.C.P., it is more helpful to define it on the basis of what it is not. First, the applicant is not required to establish an arguable case in accordance with the civil standard of proof on a balance of probabilities, as the evidentiary threshold for establishing an arguable case falls "comfortably below" that standard: Infineon, at para. 127; see also paras. 65, 89 and 94. Second, he or she is not, unlike an applicant elsewhere in Canada, required to show that the claim has a "sufficient basis in fact": Infineon, at para. 128.

[ 59 ] Furthermore, at the authorization stage, the facts alleged in the application are assumed to be true, so long as the allegations of fact are sufficiently precise: Sibiga, at para. 52; Infineon, at para. 67; Harmegnies, at para. 44; Regroupement des citoyens contre la pollution v. Alex Couture inc., 2007 QCCA 565, [2007] R.J.Q. 859, at para. 32; Charles, at para. 43; Toure, at para. 38; Fortier, at para. 69. Where allegations of fact are "vague", "general" or "imprecise", they are necessarily more akin to opinion or speculation, and it may therefore be difficult to assume them to be true, in which case they must absolutely "be accompanied by some evidence to form an arguable case": Infineon, at para. 134. It is in fact strongly suggested in Infineon, at para. 134 (if not explicitly, then at least implicitly), that "bare allegations", although "insufficient to meet the threshold requirement of an arguable case" (emphasis added), can be supplemented by "some evidence" that — "limited though it may be" — must accompany the application in order "to form an arguable case".

[ 60 ] Thus, one of the natural corollaries of Infineon is that, while what is "vague", "general" or "imprecise" does depend on the context, it also depends on the evidence adduced in support of the application: see, to the same effect, Finn (2016), at p. 170; see also, by analogy, Halvorson v. British Columbia (Medical Services Commission), 2010 BCCA 267, 4 B.C.L.R. (5th) 292, at para. 23 ("To hold plaintiffs strictly at the certification stage to their pleadings and arguments as they were initially formulated would in many cases defeat the objects of the Act — judicial economy, access to justice, and behaviour modification"); Markson v. MBNA Canada Bank, 2007 ONCA 334, 85 O.R. (3d) 321, at para. 30. It is in fact possible for the evidence submitted in support of the application to contain "concrete", "specific" or "tangible" facts that could be used to establish an arguable case even though the allegations in the application seem to be "vague", "general" or "imprecise". And it is well established that a court that must determine whether an applicant has discharged his or her burden of showing an "arguable case" must consider the allegations in the application for authorization in light of all the documentary evidence, sworn statements and transcripts in the record: S. E. Finn, ed., Manuel de l'action collective (2017), at p. 16, citing Option Consommateurs v. Bell Mobilité, 2008 QCCA 2201, at para. 30; D. Ferland and B. Emery, Précis de procédure civile du Québec (5th ed. 2015), vol. 2, at No. 2‑1615; Masella, at para. 8. For example, the Court of Appeal wrote the following in Comité d'environnement de La Baie:

It is certainly true, as the judge observes, that appellant's allegations are very vague and imprecise as to the factual basis of respondent's responsibility for the damages suffered by the residents. In its motion, appellant simply alleges that the damages have been caused by respondent's [[ translation] "fault, negligence and lack of care . . . ."] Some additional detail is provided, however, in exhibit P‑3, and particulars may, in due course, be ordered by the Court if they are required.

Vague as appellant's allegations may be, however, they do assert that the damage has been caused to the residents in question by air pollution emanating from respondent's port operations and they do allege respondent's fault and negligence. At this stage of the proceedings, I believe this is sufficient to satisfy the requirement of Article 1003(b) that the facts alleged seem to justify the authorization of a class action.

It is important to bear in mind that the judge hearing a motion under Article 1003 for authorization to institute a class action is not called upon to decide that the action is well founded or that it will succeed. The only purpose of the hearing, at that stage, is to determine whether or not the conditions set out in sub‑paragraphs (a), (b), (c) and (d) have been met. If the conditions are met, the authorization should be granted and the class action should be allowed to proceed even if the claims may involve difficult problems of proof or serious legal questions as to liability.

While the judge, on a motion for authorization, must be careful to screen out cases which are obviously frivolous or which do not meet the requirements of Article 1003, it is not his role to determine the merits of the claim. At that stage, he need only decide whether the facts alleged in the motion for authorization "seem to justify" a class action as required by Article 1003(b). [Emphasis added; pp. 660‑61.]

In Harmegnies, in contrast, there was no evidence of harm other than a [ translation] "vague, general and imprecise allegation": para. 44. The applicant had come to court "empty‑handed, asking the judge to conclude that, because there was fault, there was also necessarily damage": Harmegnies, at para. 44; see on this point Infineon, at para. 129.

[ 61 ] In sum, this Court has held unequivocally that the threshold requirement, both legal and evidentiary, under art. 575(2) C.C.P. is "a low one" (Infineon, at paras. 59, 66, 72, 94, 124 and 137; Vivendi, at para. 72); in other words, the applicant's burden at the authorization stage is not "onerous" (Infineon, at paras. 33, 61, 110, 126, 129 and 130). It is clear from Infineon and Vivendi, and from a consistent line of subsequent decisions in which the Court of Appeal has faithfully followed, interpreted and applied them, that a "frivolous", "manifestly improper" or "untenable" application does not meet this "low" threshold and must therefore be "reject[ed] entirely": Infineon, at paras. 61-62, quoting Comité régional des usagers, at p. 429. I wish to be clear here — and I say this with great respect — that it does not seem to me to be entirely accurate to say, as Côté J. does at para. 203 of her reasons, that her "disagreement" with Gascon J. essentially concerns the "application" of the criterion applicable to the condition set out in art. 575(2) C.C.P. to the case at bar, and not the "interpretation" of that criterion. Côté J. is of the view that screening out frivolous or clearly unfounded applications is not the "criterion adopted by the legislature", but only "one of the purposes of the authorization process" (para. 206 (emphasis in original)), whereas Gascon J. states quite clearly — and rightly — that it "is sufficient" that J.J.'s application be "neither untenable nor frivolous" (para. 163).

[ 62 ] Despite what certain jurists would prefer (see, for example, Whirlpool Canada v. Gaudette, 2018 QCCA 1206, at para. 29 (in obiter); C. Marseille, "Le danger d'abaisser le seuil d'autorisation en matière d'actions collectives — Perspectives d'un avocat de la défense", in C. Piché, ed., The Class Action Effect (2018), 247, at pp. 252‑53), it is in my opinion not advisable for this Court to [ translation] "reinforce" the authorization process or otherwise "revisit" its decisions in Infineon and Vivendi, which, I would add, can be said to have been endorsed by the Quebec legislature when the new C.C.P. came into force on January 1, 2016 (see Commentaires de la ministre de la Justice, at p. 420: [ translation] "[Article 575] restates . . . the former law"). I agree with my colleague Côté J., however, that the burden of establishing an "arguable case", although not a heavy one, "does exist", and "the applicant must meet it": Côté J.'s reasons, at para. 205, citing Sofio, at para. 24. This means that the authorization process must not be reduced to "a mere formality": Côté J.'s reasons, at para. 206. But I agree with the Court of Appeal that in the instant case, J.J. has met the evidentiary and the legal threshold requirements under art. 575(2) C.C.P., as I will now show.

(b) Application of the Law to the Facts of the Case

[ 63 ] In this case, the Oratory submits that it cannot be held liable solely because it owns a place where assaults are alleged to have been committed: A.F.O., at paras. 107‑10. However, this reflects a misunderstanding of J.J.'s allegations against the Oratory. As this Court put it in Infineon, at para. 80, J.J.'s "allegations . . . must be fully and well understood". Contrary to what the dissenting Court of Appeal judge suggested on this point (at paras. 128, 132 and 136), J.J.'s personal cause of action against the Oratory is not based on a supposed "absolute" (i.e., no‑fault) liability arising solely from the fact that the Oratory is the owner of a place where sexual assaults were allegedly committed. Rather, it is based on liability for the Oratory's direct fault in relation to assaults allegedly committed at that place. Such a cause of action necessarily implies that the Oratory's directors are alleged to have committed a fault attributable to the Oratory by failing to put a stop to the sexual abuse or, worse, by covering it up. In sexual abuse cases, direct fault can, moreover, take different forms: breach of a duty to report or to protect, or failure to do what was needed to prevent or put a stop to the abuse (see, inter alia, Langevin and Des Rosiers, at pp. 165‑208). In the case at bar, the relevant allegations are set out at paras. 3.33 to 3.38 of the application. The dissenting Court of Appeal judge characterized them as [ translation] "general (and non‑factual) accusations": para. 134. I understand that it could be tempting to conclude that the allegations in J.J.'s application are vague, general or imprecise: see, for example, Alex Couture, at paras. 31‑32.

[ 64 ] However, the seeming vagueness, generality or imprecision of the allegations must be assessed in light of the context of J.J.'s application and the evidence presented in support of it. That context involves incidents that occurred many years ago, when J.J. was still a child. As I mentioned above, the fact that nothing was reported at the time of the events explains, at least in part, why no "concrete", "specific" or "tangible" allegations of fact are made in the application itself in support of J.J.'s argument that the Oratory knew about the alleged sexual assaults on children. What is more, the allegations of fault against the Oratory are not being made "in the abstract": they are grounded in the underlying factual framework, which consists of allegations that multiple victims were sexually assaulted at the Oratory on a regular basis over a period of many years. This in itself is "suspect", and makes it "possible" that there is a fault that can be attributed to the Oratory. Sexual assault has always been a fault that automatically causes serious injury: Langevin and Des Rosiers, at p. 166; Centre de la communauté sourde du Montréal métropolitain v. Institut Raymond‑Dewar, 2012 QCCS 1146, at paras. 75‑76. In addition, J.J.'s seemingly general allegations against the Oratory are supported in the case at bar by "some evidence" within the meaning of Infineon: para. 134.

[ 65 ] Let me explain.

[ 66 ] The Oratory is not only the owner of a "pre‑eminent place of worship . . . associate[d] with the Congregation": Gascon J.'s reasons, at para. 177. It is true that, according to the preamble to the 1916 Act, the Oratory was incorporated "to assure the permanent maintenance of the [chapel known as St. Joseph's Oratory] and to allow the extension of its sphere of action": A.R.O., vol. II, at p. 29. However, s. 1 of that Act clearly provides that the Oratory was also incorporated "for the purpose of promoting the Roman Catholic faith and the welfare of souls by the propagation of the devotion to Saint Joseph"; see also the preamble to the 1916 Act. As I mentioned above, the information statement for the Oratory in the enterprise register from 2013 indicates that the Oratory is a "church" within the meaning of s. 1(c) of the Religious Corporations Act, that is, a "group of persons who form a religious body": see A.R.O., vol. II, at p. 23. And s. 5b. of the 1916 Act provides that the Oratory may "[a]ppear before the courts, and prosecute or defend any action or proceeding". Section 5d. adds that the Oratory may also "[a]ccept, acquire and hold . . . for the purposes and use of the corporation, moveable and immoveable property", while s. 7 provides that rents and revenues from its immovable property must be spent "in the accomplishment of religious, charitable and educational works". In considering similar provisions in Bennett, this Court categorically rejected the argument that the powers and activities of an episcopal corporation are confined "to holding property": para. 9.

[ 67 ] The organization and management of masses are, without a doubt, "religious . . . works" (s. 7 of the 1916 Act) of central importance for which the Oratory, as a "church", was responsible in accordance with its mission of "promoting the Roman Catholic faith and the welfare of souls by the propagation of the devotion to Saint Joseph" (preamble to and s. 1 of the 1916 Act):

Catholic theology and culture is firmly structured around the belief that the Mass, or Eucharist, is the only acceptable sacrifice to God, having replaced all forms of sacrifice that preceded it. The notion of sacrifice presumes a belief that there remains a need for intercession and advocacy before God. The Mass is the center of Catholicism. The priest is essential to the Mass for without the priest there can be no Mass and without the Mass, there could be no Catholicism . . . . [Emphasis added.]

(Benkert and Doyle article (2008), A.R.O., vol. II, at p. 44)

[ 68 ] J.J. served mass at the Oratory: para. 3.12 of the application. He was allegedly assaulted there by [ translation] "Father Bernard, a member of the Congregation . . . who had an office at [the] Oratory [and] frequently asked J.J. to go into his office for confession after serving mass": para. 3.14 of the application. Although Father Bernard did not engage in his activities with children "under the authority" [^5] of the Oratory, he necessarily did so with the consent of the Oratory, which had made him one of the essential players in one of the central activities — mass — for which the Oratory was responsible and had also made an office on its property available to him so that he could [ translation] "confess" the altar boys: R.F.O., at para. 12. With respect, it is absolutely impossible for me to find at this stage that an argument that the Oratory may have breached its duty to protect its altar boys, who were allegedly assaulted at the Oratory in the course of activities for which the Oratory was responsible, is "frivolous", "clearly unfounded" or "untenable". "Some evidence" has in fact been presented at this stage that fully supports the argument that the Oratory, or more specifically its directors, knew or ought to have known about the assaults on children that are alleged to have been committed at the Oratory by members of the Congregation in the course of activities for which the Oratory was responsible, given that at the time of the events, the Oratory's directors were themselves all members of the Congregation.

[ 69 ] As I explained above, the table of victims sets out [ translation] "specific, tangible" facts that in themselves support J.J.'s claim that the Congregation knew about the alleged assaults on children by its members. There are several pieces of evidence, including the number of assaults reported in the table of victims, the number of religious members involved and the length of the period covered by the reports of abuse, that, in combination, support an argument, at the authorization stage, that it might be possible at the trial on the merits to draw from them an inference that the Congregation knew or could not have been unaware that some of its members were assaulting children: C.A. reasons, at paras. 59‑60 and 83‑86. Regarding, more specifically, what members of the Congregation acting as directors of the Oratory knew, it should be reiterated that five victims who have already come forward allege that they were assaulted at the Oratory, over a period of nearly twelve years, by three or four members of the Congregation (Father Bernard, Brother C.H. and/or Brother Hamelin, and Father Brault). As well, it should be borne in mind that other victims could come forward in the course of the proceedings:

[ translation] . . . if a class action is to be brought against an institution attended by multiple persons for acts committed over a long period of time, it seems to us that the possibly high number of potential victims, although unknown at the beginning of the proceedings, fully justifies the bringing of a class action. It may well be that only one victim comes forward and that this victim decides to bring a class action in his or her own name and on behalf of all the other victims. If a teacher or a priest assaulted the victim over a period of one year, and if he worked at the institution for several years, is it not logical to conclude that other children may have suffered the same fate? It matters little in our opinion whether 5, 10, 50 or 100 victims join the class action once it has been authorized. Even though this number cannot be determined at the outset, a class action should be authorized in order to make justice more accessible to victims of sexual violence, who already have to overcome great difficulties in bringing their individual actions. Some Canadian courts have even found that the class action can help the victims, who are particularly vulnerable.

(Langevin and Des Rosiers, at p. 369)

[ 70 ] I must stress here that in order to succeed in his action, J.J. does not need to prove that the Oratory, or more specifically its directors, had actual or subjective knowledge of the assaults that are alleged to have been committed at the Oratory. Civil fault under art. 1457 C.C.Q. [ translation] "is the difference between the agent's conduct and the abstract, objective conduct of a person who is reasonable, prudent and diligent": St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 21, quoting J.‑L. Baudouin and P. Deslauriers, La responsabilité civile (7th ed. 2007), vol. I, at p. 171 (emphasis added). Because J.J.'s allegations, like the table of victims, show that what is at issue in the instant case is not a single event or an isolated incident, but alleged assaults on multiple victims at the Oratory on a regular basis over a period of many years, it is entirely possible that the trial judge will conclude that the Oratory, or more specifically its directors, ought to have known about the assaults that are alleged to have been committed at the Oratory, and that the directors were negligent in not putting a stop to them:

Religious institutions have been found to be in breach of a duty to take reasonable care in tort where they have failed to establish proper supervision and rules of appropriate conduct, failed to investigate complaints, and failed to offer counselling; the institution need not have actual knowledge about any employees, volunteers or alleged incidents, rather need only have or ought to have in contemplation the potential for improper conduct in relation to vulnerable persons. [Emphasis added.]

(Ogilvie, at p. 335)

[ 71 ] Furthermore, as I explained above, the DVD of the Enquête program attests to the systemic nature of the alleged sexual abuse by members of the Congregation in various institutions. It also supports the claim that the Congregation's officers knew about the sexual abuse that is alleged to have occurred at other places in addition to Collège Notre‑Dame (at minute 24, as I mentioned above, a speaker refers to [ translation] "one or another of the institutions managed by Holy Cross"). The fact that the DVD does not explicitly mention the Oratory — apart from a statement at the very beginning that the Congregation founded the Oratory — is not a bar to authorizing the institution of a class action against it. In Infineon, the Court held, for example, that the institution of a class action could be authorized on the basis of documents that showed that the appellants had participated in a price‑fixing scheme with global repercussions, even though none of those documents expressly mentioned illegal activities in Quebec: see inter alia paras. 92 and 134.

[ 72 ] In short, J.J.'s "legal syllogism" in relation to the Oratory can be summarized as follows. The Oratory is not solely an owner, and J.J.'s personal cause of action against the Oratory is not based solely on the fact that the Oratory is the owner of a place where assaults allegedly occurred. Rather, his personal cause of action against the Oratory is founded on the Oratory's direct liability for assaults that are alleged to have been committed at that place by a member of the Congregation whom the Oratory had made one of the essential players in one of the central activities for which the Oratory was responsible. In addition, the Oratory, or more specifically its directors, knew or ought to have known about the assaults on children that are alleged to have been committed at that place by members of the Congregation, given that at the time of the events, the Oratory's directors were themselves all members of the Congregation. In other words, the Congregation is hidden behind the Oratory, and this is definitely something that may be taken into consideration in law in order to impute direct liability to the Oratory:

A corporation is certainly a person, but a very obedient person, slavishly doing all that its directors wish it to do.

When determining whether a corporation has directly or indirectly committed fraud or failed to comply with its statutory or contractual obligations, reality is taken into account: there is no veil which prevents the identity of the true authors of the decision to take action from being determined. This is why most statutory penal provisions make directors and officers who participated in the corporate decision personally liable for the resultant act or omission. In criminal and penal law the Courts have developed the alter ego doctrine which we will examine in Chapter 26.

In the same way, in civil obligations, when determining the existence of fraudulent or malicious intent instigated either by the corporation, someone acting in concert with it or under its instructions, there is no "veil" to prevent a Court from going to the source of the intention, by taking into consideration the identity and motives of those who made the decision in question and the relationships between them, and attributing the intention, motives and relationships to one or more corporations controlled by them. [Emphasis added.]

(P. Martel, Business Corporations in Canada: Legal and Practical Aspects (loose‑leaf), at p. 1‑67)

[ 73 ] In this sense, I am in complete agreement with the Court of Appeal that [ translation] "all the allegations and evidence that can apply to the Congregation can also apply to the Oratory": para. 113. With respect, it seems to me that the reasons of my colleague Gascon J., who would authorize the institution of a class action against the Congregation but not against the Oratory, have certain inherent contradictions. The "various exhibits" on which the Court of Appeal relied in authorizing the institution of a class action against both the Congregation and the Oratory concern both these entities: Gascon J.'s reasons, at para. 159; see also para. 173 of his reasons, in which he enumerates the evidence filed in support of J.J.'s application against both these entities. Like Corporation Jean‑Brillant and the Congregation, the Oratory and the Congregation also have one or more "officers in common" as well as having establishments at the same addresses: Gascon J.'s reasons, at para. 160. The Court of Appeal did not lift the corporate veil of the Oratory either; it merely noted that the Oratory's affairs [ translation] "were managed in whole or in part by the Congregation's members" (para. 111; see also paras. 14, 22 and 64) and that it could be maintained, at the authorization stage, that the Oratory should be held liable for assaults allegedly committed at the Oratory, given the "context specific to the facts of this case": Gascon J.'s reasons, at para. 162.

[ 74 ] My colleague Gascon J. tries to show how J.J.'s cause of action against the Oratory differs in nature or in its validity from his cause of action against the Congregation. With respect, I do not find his arguments convincing. In my view, we must instead recognize that the allegations made against the Oratory and those made against the Congregation in J.J.'s application and the exhibits filed in support of it simply cannot be distinguished in any way that would be legally relevant.

[ 75 ] When all is said and done, the difference my colleague sees between the Oratory and the Congregation is based solely on the fact (a) that the allegations in the application with respect to canon law mention the Congregation only and (b) that the DVD of the Enquête program does not specifically refer to the assaults allegedly committed by members of the Congregation at the Oratory (Gascon J.'s reasons, at para. 175; see also para. 172).

[ 76 ] However, although the allegations in the application with respect to canon law do refer only to the Congregation, this does not justify the different outcome my colleague arrives at in the Oratory's case. Those allegations are in fact relevant even to the Oratory, given that they relate to the authority of officers of the religious community known as the Congregation of Holy Cross over its members. Not only were the directors of the Oratory all members of the Congregation, but some of them may even have been officers of the Congregation, and therefore in positions of authority (and able to exercise control) over the members of the Congregation who worked at the Oratory or engaged in activities with children there: information statement for the Oratory in the enterprise register (2013), A.R.O., vol. II, at p. 24; information statements for the Congregation in the enterprise register (2015) and (2014) and information statement for Corporation Jean‑Brillant in the enterprise register (2014), A.R.C., at pp. 134, 141 and 146.

[ 77 ] Similarly, while it is true that the DVD of the Enquête program does not specifically refer to the assaults allegedly committed by members of the Congregation at the Oratory, it should be borne in mind that, as I mentioned above, the DVD does refer to assaults allegedly committed in [ translation] "one or another of the institutions managed by Holy Cross". My colleague adopts, on the one hand, but without saying so clearly, the assessment of the Superior Court judge, who erroneously concluded that the DVD is [ translation] "of no assistance for the purposes of this proceeding [against the Congregation]" (para. 111) on the basis that it deals at length with sexual assaults committed at Collège Notre‑Dame. But on the other hand, my colleague also rejects the Superior Court judge's assessment on this same point, as he expresses the opinion that the DVD reinforces J.J.'s cause of action against the Congregation, but not against the Oratory: Gascon J.'s reasons, at para. 176. With respect, it must, on the contrary, be concluded that, if the DVD of the Enquête program is of any assistance for the purposes of authorization of the institution of the proposed class action — and like my colleague, I am effectively of the view that it is — the reason is that it supports J.J.'s "legal syllogism" to the effect that the Congregation and the various institutions it controls or that it controlled at the time of the events (such as Collège Notre‑Dame or the Oratory) are liable for the alleged sexual abuse of children by members of the Congregation.

[ 78 ] In fact, if it were absolutely necessary to engage, as my colleague does, in an exercise of comparing the relative strengths of J.J.'s causes of action against the Oratory and against the Congregation, it seems to me that I would have to find that J.J. has a sounder cause of action against the Oratory than against the Congregation (i.e., against the appellant "Province canadienne de la Congrégation de Sainte‑Croix"). As my colleague rightly points out at para. 162 of his reasons, "the Congregation's corporate structure" will have to be reviewed exhaustively "at trial", where the question of the basis on which the Congregation can be held liable for acts allegedly committed before it was incorporated will of course come up again. Moreover, my colleague Côté J. concludes that this flaw in J.J.'s cause of action against the Congregation is so clear as to justify not authorizing the institution of the class action against that entity. Although I do not agree with my colleague's conclusion in this regard, I would point out here that J.J.'s cause of action against the Oratory has no such flaw. The Oratory, which is one of the many faces of the religious community known as the Congregation of Holy Cross, was incorporated in 1916 and therefore existed at the time of the events. It is entirely possible that the trial judge will conclude that no legal principle would justify holding the Congregation liable for acts allegedly committed before it was incorporated, and that conclusion would be fatal to the claims for compensation of J.J. and other victims of sexual assaults that are alleged to have been committed at the Oratory if, as my colleague Gascon J. suggests, the institution of the class action against the latter entity were not authorized.

[ 79 ] In concluding on the condition of sufficiency of the alleged facts, I will simply reiterate that, if any doubt remains on the issue of whether the evidentiary and the legal threshold requirements under art. 575(2) C.C.P. are met, the applicant, J.J., should in principle be given the benefit of that doubt: C.A. reasons, at para. 78; see also Harmegnies, at para. 46; Charles, at para. 43; Adams, at para. 23; Finn (2016), at p. 53; Lafond (2006), at pp. 115‑16. As Kasirer J.A. of the Quebec Court of Appeal so aptly put it in Sibiga, which was rendered in 2016, at para. 51, "courts should err on the side of caution and authorise the action where there is doubt as to whether the standard has been met".

(4) Fact That Only the Oratory Is Being Sued Together With the Congregation

[ 80 ] Finally, the Oratory submits that J.J.'s action against it is inconsistent, as no other owner of a place where assaults were allegedly committed by members of the Congregation is being sued. My colleague Gascon J. seems to agree with this argument (at para. 177), just as the dissenting Court of Appeal judge (at para. 130) and the Superior Court judge (at paras. 129‑35) did before him. With respect, this proposition seems to me to have no basis in law. The fact that other defendants could possibly have been sued but were not cannot release the Oratory from its liability for assaults allegedly committed at the Oratory. Moreover, in extracontractual civil liability, [^6] the obligation to make reparation for injury is solidary: art. 1526 C.C.Q. The creditor's action therefore need not be instituted against all the co‑debtors, as the creditor may, on the contrary, "apply . . . to any one of the co‑debtors at his option": art. 1528 C.C.Q.

[ 81 ] In any event, the finding of liability being sought in the Oratory's case is not based solely on its being the owner of a place where assaults were allegedly committed. Rather, J.J.'s personal cause of action against the Oratory is based on liability for the Oratory's own direct fault, and in this respect, the fact that the Oratory was controlled by members of the Congregation at the time of the events is relevant. At the hearing on May 6, 2015 before the Superior Court judge, counsel for J.J. explained that [ translation] "[t]he Oratory is being sued essentially because the Oratory is clearly under the control of Holy Cross": oral argument of Mr. Gareau dated May 6, 2015, A.R.O., vol. I, at p. 157. The record does not show whether other potential defendants were controlled in the same way by members of the Congregation at the time of the events. [^7] École Notre‑Dame‑des‑Neiges, for example, where J.J. also alleges that he was assaulted, was at the time of the events run by the Commission des écoles catholiques de Montréal, not by the Congregation: oral argument of Mr. Gareau dated May 6, 2015, A.R.O., vol. I, at p. 158.

[ 82 ] Moreover, contrary to the assertions of the Oratory, the dissenting Court of Appeal judge and the Superior Court judge, the fact that only the Oratory is being sued together with the Congregation at the authorization stage is in my view consistent with the fact that [ translation] "it is the individual situation of the appointed person that must be considered at this stage of the proceeding" in determining whether the condition of sufficiency of the alleged facts is met: Option Consommateurs v. Merck & Co. inc., 2013 QCCA 57, at paras. 20 and 24; Sofio, at para. 10; Option Consommateurs v. Fédération des caisses Desjardins du Québec, 2010 QCCA 1416, at para. 9; Lambert (Gestion Peggy), at para. 28. In the instant case, the "appointed person" is J.J., and he has a personal cause of action only against the Oratory and against the Congregation — and not against other potential defendants. It should be noted on this point that J.J.'s initial application (before it was amended), which is dated October 30, 2013 and was filed on November 21, 2013, predates this Court's judgment in Bank of Montreal v. Marcotte, which was rendered on September 19, 2014. It was not until then that it was clearly established in Quebec law that the representative plaintiff is not required to have a personal cause of action against each defendant: Bank of Montreal v. Marcotte, at paras. 37‑47, rejecting the position adopted in Bouchard v. Agropur Coopérative, 2006 QCCA 1342, [2006] R.J.Q. 2349, and Option Consommateurs v. Novopharm Ltd., 2008 QCCA 949, [2008] R.J.Q. 1350; see, on this point, Sibiga, at paras. 37‑40. In other words, given the state of the law that applied in Quebec when J.J. filed his initial application, it was not clear that a representative plaintiff could institute a class action against multiple defendants if he or she did not have a personal cause of action against each of them. In my opinion, it would be unfair today to penalize J.J. for choosing to sue only the defendants against which he has a personal cause of action, given that in doing so, he was simply complying with the law as it stood at the time when he filed his application. I would conclude by pointing out that the situation in the case at bar is hardly any different from the one in Cornellier, in which only Collège Notre‑Dame was sued together with the Congregation even though the case concerned sexual abuse, by members of the Congregation, of children who had attended Collège Notre‑Dame, Collège Saint‑Césaire and École Notre‑Dame de Pohénégamook.

III. Conclusion

[ 83 ] I would dismiss both appeals with costs to J.J.

[The reasons of Gascon J. (dissenting in part, paras. 84–189) and Côté J. (dissenting, paras. 190–287) are not reproduced here in full, but their conclusions are reflected in the headnotes above.]

Appeals dismissed with costs, Wagner C.J. and Gascon and Rowe JJ. dissenting in part and Côté J. dissenting.

Solicitors

Solicitors for the appellant/intervener L'Oratoire Saint‑Joseph du Mont‑Royal: De Grandpré Chait, Montréal.

Solicitors for the appellant/intervener Province canadienne de la Congrégation de Sainte‑Croix: Fasken Martineau DuMoulin, Montréal.

Solicitors for the respondent: Kugler Kandestin, Montréal; Arsenault, Lemieux, Montréal; Gareau Avocat, Montréal.

[^1]: With the exception of victims covered by another class action that has since been settled.

[^2]: Section 4 of the 1916 Act provides that "[t]he term of office of the directors [and] their number, not less than three or more than seven . . . may be fixed from time to time by by-law passed by the members of the corporation at a general meeting specially called for that purpose".

[^3]: Among these nine directors, there are two whose reported personal addresses corresponded to the addresses of establishments of the Congregation: see information statement for the Oratory in the enterprise register (2013), A.R.O., vol. II, at p. 24, and information statements for the Congregation in the enterprise register (2015) and (2014), A.R.C., at pp. 135-36 and 147-48.

[^4]: It should be noted that J.J.'s application covers the entire [ translation] "period from 1940 to a final judgment": Sup. Ct. reasons, at para. 2.

[^5]: As I will explain briefly below, at para. 76, however, I do not completely rule out the possibility that the trial judge will find the Oratory liable for the act of another person in what could be likened to a liability based on a subordinate/principal relationship. Contrary to the comments of both the dissenting Court of Appeal judge and my colleague Gascon J., it is in fact alleged that the Oratory was the "principal" of Father Bernard: para. 3.38 of the application.

[^6]: J.J.'s action is [ translation] "[a]n action in extracontractual civil liability and in punitive damages": para. 2 of the application.

[^7]: At the hearing on May 6, 2015 before the judge of the Superior Court, counsel for J.J., answering a question from the judge as to whether other institutions had been founded or were controlled by the Congregation, stated: [ translation] "It's possible, Your Honour, I couldn't say yes or no" (oral argument of Mr. Gareau dated May 6, 2015, A.R.O., vol. I, at p. 156).

[^8]: Although the application judge's judgment was rendered under the former Code of Civil Procedure, CQLR, c. C-25, I will, like the Quebec Court of Appeal, be referring solely to the corresponding provisions of the new Code of Civil Procedure, which essentially restate the former law.