Use Your Discretion (At Your Own Risk): Could the Supreme Court’s Asselin Decision Resonate at Common Law?

  • May 05, 2021
  • Robert Sniderman and Jeremy Martin, Cassels Brock & Blackwell LLP

Prior to the introduction of Bill 161 in Ontario and the resulting amendments to the Class Proceedings Act, 1992, the Canadian approach to class action certification and authorization was one of progress toward national consistency. Through the application of common law decided at the Supreme Court level and statutory amendments such as those incorporating the proposed Canadian Judicial Protocol for the Management of Multi-jurisdictional Class Actions, Canadian class action procedure seemed to be harmonizing – even homogenizing – to facilitate the necessity of dealing with multi-jurisdictional classes.

With its recent decision in Desjardins Financial Services Firm Inc v Asselin, 2020 SCC 30 (“Asselin”), however, the Supreme Court of Canada highlighted and galvanized the suddenly stark jurisdictional differences between Canadian provinces, finding 6-3 that, even as Ontario has taken legislative steps to raise the standard for class action certification, the existing law in Québec is to be interpreted on the loosest possible standard, short of authorizing frivolous claims.

The majority affirmed the Court of Appeal’s decision authorizing a class action by a class of investors against financial planners and mutual fund representatives at Desjardins Financial Services Firm Inc. and its associated asset management company. The minority dissented in part, and agreed instead with the motions judge’s decision that the class action failed to meet the authorization criteria in Article 575 of the Code of Civil Procedure (“CCP”).

Both the majority and dissenting decisions in Asselin interpreted the Court’s past decisions on Québec authorization of class actions[i] and reiterated the principles from those decisions that courts must use a “flexible”, “liberal”, and “generous” approach in considering the criteria under the CCP. The decisions diverged, however, on the subject of how that flexible and generous approach ought to be applied on a motion for authorization: is the test simply intended to weed out “frivolous” class actions or those “clearly wrong in law”,[ii] or is it a verification stage that ensures that the action conclusively meets the CCP criteria?  In other words, are the CCP criteria a test to be applied in order to identify and reject frivolous actions, or is it possible for a court to deny authorization to a case that is not frivolous or wrong in law, but that appears to be “untenable” because one of more of the criteria are not clearly met?[iii]


In March 2005, the proposed representative plaintiff Ronald Asselin (“Asselin”) made two types of investments as a result of alleged representations made by the representatives of Caisse Desjardins. In particular, Asselin alleged that a financial planner and mutual fund representative recommended that he purchase Perspective Plus Term Savings (“PP”) and Alternative Term Savings (“ALT”). Asselin further alleged that the Desjardins Group subsequently sent investment statements and documents in 2006 and 2007 which promoted PP and ALT investments and suggested that these were safe investments intended for risk-averse investors.[iv]

In mid-2007, Asselin signed two deposit agreements for PP and ALT investments, allegedly “on the strength of all this information” from Caisse Desjardins. While these investments yielded a return at first, Asselin received a letter from Caisse Desjardins in early 2009 stating that the investments would yield no additional return, even though the terms of the investments had not expired.[v]

Based on the foregoing, Asselin commenced a class action against Desjardins Financial Services Firm Inc. (“Firm”) and Desjardins Global Asset Management Inc. (“Management”) on behalf of those who made PP and ALT investments. Among other things, Asselin alleged that:

  1. Firm did not give proper detail to its financial planners, and consequently, all representatives of Firm breached their duty to inform class members by failing to inform them of the potential risks accompanying the investment; and
  2. Management was liable on the basis that it designed and managed the PP and ALT investments in a manner that was faulty and incompetent.[vi]