Federal Court Rejects Motion to Strike Class Action over Recyclable Bag Claims

Date: 20260617 [NAME] : T-2174-25 Citation: 2026 FC 825 Montréal, Québec , June 17, 2026 PRESENT: Mr. Justice Gascon PROPOSED CLASS PROCEEDING BETWEEN: [NAME] Plaintiff and [NAME]., [COMPANY]., [COMPANY]. Defendants

REASONS AND

ORDER I. Overview [ 1 ] The defendants, [NAME]., [COMPANY]. [COMPANY]. [collectively, [NAME]], bring a motion to strike [Motion to Strike] the statement of claim of a proposed class action proceeding filed by the plaintiff, [NAME] [Statement of Claim]. In her Statement of Claim dated June 27, 2025, [NAME] faults [NAME] for falsely representing to consumers that its green shopping bags are recyclable, when in fact they are neither recycled nor recyclable by sorting facilities in Canada. [ 2 ] [NAME] moves to strike the Statement of Claim, pursuant to section 221 of the Federal Courts Rules , SOR/98-106 [Rules], on the grounds of res judicata and, alternatively, abuse of process based on the doctrines of re-litigation and collateral attack. [NAME] argues that the Statement of Claim constitutes an attempt to circumvent the judgments rendered by the [NAME] in a class action based substantively on the same facts and driven by the same counsel, in the matter bearing file number 500-06-[PHONE] [[NAME]] before the Superior Court of Quebec [QCCS]. [ 3 ] For the reasons that follow, [NAME]’s Motion to Strike will be dismissed. The strict requirements of the doctrine of res judicata are not met and I do not find that the doctrines of abuse of process by way of re-litigation or collateral attack apply in this case. This conclusion flows from the class action regime, the nature of the issue decided by the [NAME] in the [NAME] as well as the differences in the allegations and evidence brought forward by [NAME] in her proposed class proceeding. As such, I am not persuaded that this is a clear case where I should exercise my discretion to strike the Statement of Claim at this preliminary stage.

II. Factual context [ 4 ] [NAME] resides in [NAME]. Between 2022 and 2023, she purchased green shopping bags sold by [NAME] for an approximate total of $15.00. Although these bags [NAME] the label “Recyclable” and are marketed as environmentally friendly bags, [NAME] alleges that they are in fact made of woven polypropylene. She asserts that, for woven polypropylene to be recyclable in Canada, it must meet certain standards that are allegedly not satisfied here. Consequently, she claims that the bags sold by [NAME] are not recyclable in Canada despite being publicized as such. [NAME] maintains that, had she known this information, she would not have purchased the bags in question. [ 5 ] In her Statement of Claim, she alleges that, by acting as it did, [NAME] made false or misleading representations within the meaning of section 52 of the Competition Act , RSC 1985, c C-34 and that [NAME]’s conduct in relation to these bags constitutes greenwashing as defined by the Competition Bureau. [NAME] seeks relief under section 36 of the Competition Act , which grants a statutory right of private action to recover damages for harm suffered as a result of certain criminal conduct prohibited by this legislation, including conduct covered by section 52, as well as the related cost of investigation and prosecution. [ 6 ] Given the grounds raised by [NAME] in support of its Motion to Strike, it is necessary to provide an overview of the [NAME]. [ 7 ] On September 30, 2022, [NAME] filed with the QCCS an application for authorization to institute a national class action against 11 defendants, including [NAME], based on the same conduct as in the present case — namely, that the defendants sold bags bearing a representation that they are recyclable when, in fact, they would not be recyclable in Canada. The proposed class action brought by [NAME] was based on provisions of the Consumer Protection Act , CQLR, c P-40.1 [CPA] and the Civil Code of Québec , CQLR, c CCQ-1991 [CCQ], as well as sections 36 and 52 of the Competition Act . [NAME]’s application for authorization targeted the following class: All persons in Canada who purchased a bag from [NAME], the [NAME] and/or [NAME] containing the mention “recyclable,” in-store or online. [ 8 ] On May 22, 2024, in [NAME] c [NAME] , 2024 QCCS 2087 [ [NAME] ], the QCCS partially authorized the proposed class action brought by [NAME]. The QCCS granted the application for authorization with respect to the causes of action based on the CPA and the CCQ. However, as far as the Competition Act is concerned, the QCCS concluded that [NAME] had not advanced an arguable cause of action, as she had failed to demonstrate any loss or damage arising from the fact that the class members and her allegedly purchased the shopping bags because they believed them to be recyclable ( [NAME] at paras 76–80). [ 9 ] The QCCS also found that, while the evidence adduced supported the allegations that the bags could not be recycled in Quebec, it was insufficient with respect to the recyclability of the bags in the rest of Canada. Regarding the provinces other than Quebec, the QCCS concluded that “the allegations are merely assumptions based on a hypothesis developed in light of the situation prevailing in Quebec” [translation] — “ les allégations ne sont que des suppositions fondées sur une hypothèse développée en fonction de la situation prévalant au Québec ” ( [NAME] at para 34; see also paras 5, 117) which, in the court’s view, was insufficient to authorize a national class action. In the circumstances, said the QCCS, these allegations with respect to the non-recyclability of the bags in the rest of Canada could not be deemed to be true as they were not corroborated by any piece of evidence. [ 10 ] Accordingly, the QCCS limited the proposed class action to Quebec and defined the class as follows: All persons in Quebec who purchased a bag from [NAME], the [NAME] and/or [NAME] containing the mention “recyclable” since April 16, 2019. [Translation; emphasis added.] [ 11 ] [NAME] appealed the decision, arguing that the QCCS erred in declining to authorize her cause of action under the Competition Act and in limiting the class to [NAME]. [ 12 ] On June 20, 2025, in [NAME] c [NAME] , 2025 QCCA 804 [ [NAME] ], the [ADDRESS] of Appeal [QCCA] partially allowed the appeal and concluded that the facts alleged by [NAME] supported an arguable cause of action not only with respect to the provisions of the CPA and the CCQ but also under the Competition Act .

Accordingly, it authorized [NAME]’s class action to proceed under all three statutory bases she had argued. However, regarding the scope of the class, the QCCA sided with the QCCS, emphasizing that the entirety of [NAME]’s application for authorization “is confined to the context prevailing in Quebec” [translation] — “ est circonscrite au contexte prévalant au Québec ” ( [NAME] at para 10) and that the QCCS’s findings as to whether an allegation is vague, general, imprecise or speculative and as to the absence or insufficiency of evidence regarding the recyclability of the bags in the rest of Canada warranted deference ( [NAME] at paras 9‒10). [ 13 ] Dissatisfied with the judgment of the QCCA, [NAME] sought leave to appeal the decision to the Supreme Court of Canada [SCC], but leave was dismissed on May 28, 2026 ( [NAME] v [NAME], et al , 2026 CanLII 50176, no 41998).

Accordingly, the class in the [NAME] remains, to this day, confined to Quebec, as defined by the QCCS in [NAME] and confirmed by the QCCA in [NAME] . [ 14 ] A week after the QCCA rendered its decision in [NAME] also filed her Statement of Claim before this Court, seeking to certify a class action where [NAME] had failed — that is, in the rest of Canada. In her action, [NAME] defines the proposed class as follows: All people in Canada (excluding Quebec) who purchased a bag from [NAME] advertised as “recyclable.” III. Analysis [ 15 ] In its Motion to Strike, [NAME] argues that the Statement of Claim should be struck, for any of the three following reasons: 1) there is res judicata with the [NAME]; 2) [NAME]’s proposed class action constitutes an abuse of process by way of re-litigation; and 3) the proposed class action is, in fact, an indirect challenge or collateral attack on the judgment of the QCCA in the [NAME]. Should this Court grant the Motion to Strike and conclude that the Statement of Claim should be struck, [NAME] argues that [NAME] should not be allowed to amend it. [ 16 ] [NAME] disputes every element of [NAME]’s Motion to Strike. First, [NAME] argues that none of the three well-accepted conditions of issue estoppel are established and that, even if they were, this Court should still refuse to apply res judicata as a matter of discretion. Second, she claims that there is no re-litigation here as she is rather “building on the success” achieved by [NAME] before the QCCA in a context where the alleged wrongdoing and the governing law are identical on a country-wide basis. Third, she contends that nothing in the proceedings before this Court attacks the judgments of the [NAME] themselves and their legal effects. [ 17 ] For the reasons explained below, I am not persuaded by [NAME]’s arguments and conclude that this is not a clear case where I should exercise my discretion, under Rule 221, to strike [NAME]’s Statement of Claim at this preliminary stage. A. The applicable burden on a motion to strike [ 18 ] Rule 221 provides that the Court may order the striking out of all or part of a pleading, with or without leave to amend, for any of the grounds set out therein. In this case, [NAME] bases its Motion to Strike on paragraphs 221(1)(a) and (f) of the Rules and to a lesser extent, on paragraph 221(1)(b). These provide as follows: 221 (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it 221 (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : (a) discloses no reasonable cause of action or defence, as the case may be, a) qu’il ne révèle aucune cause d’action ou de défense valable; (b) is immaterial or redundant, b) qu’il n’est pas pertinent ou qu’il est redondant; […] […] (f) is otherwise an abuse of the process of the Court, f) qu’il constitue autrement un abus de procédure. and may order the action be dismissed or judgment entered accordingly. Elle peut aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en conséquence. (2) No evidence shall be heard on a motion for an order under paragraph (1)(a). (2) Aucune preuve n’est admissible dans le cadre d’une requête invoquant le motif visé à l’alinéa (1)a). [ 19 ] It is well established that the Court has the discretionary power to strike a pleading under Rule 221. However, this is an exceptional remedy that should only be granted in cases where, assuming the pleaded allegations of fact to be true, the action is fundamentally defective and where, for example, it is plain and obvious that the pleadings disclose no reasonable cause of action ( [COMPANY] v Canada , 2024 SCC 24 at para 26 [ Iris Technologies ]; R v [COMPANY] , 2011 SCC 42 at para 17 [ Imperial Tobacco ]; [NAME] v [COMPANY] , 1990 CanLII 90 (SCC), [1990] 2 SCR 959 at 980; [NAME] v Canada (Attorney General) , 2024 FCA 111 at para 5; Canada (Attorney General) v [COMPANY] , 2020 FCA 68 at para 26; [NAME] v Canada (Public Safety and Emergency Preparedness) , 2019 FCA 47 at para 3; Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc , 2013 FCA 250 at para 47; [NAME] v Canada , 2011 FCA 141 at para 8; [COMPANY] v [NAME] , 2011 FCA 77 at para 10 [ [COMPANY] 2011 ]; [COMPANY] v Canada (Governor in Council) , 2007 FCA 374 at para 16; [COMPANY] v [COMPANY] , 1994 CanLII 3529 (FCA), [1995] 1 FC 588 at 600). [ 20 ] Although the power to strike an application constitutes an important tool of judicial management, essential to the efficiency and fairness of proceedings ( Imperial Tobacco at para 19), it must be exercised with care and restraint ( Imperial Tobacco at para 21; [COMPANY] 2011 at para 10). Indeed, the applicable standard is a high one and a motion to strike will only be granted in the “clearest of cases” ( Iris Technologies at para 26, citing [NAME] v Canada (National Revenue) , 2019 FC 860 at para 10). [ 21 ] Where a party alleges that a pleading raises an issue that has been definitively decided in a previous proceeding — as is the case here —, they may seek to strike it under either paragraph 221(1)(a) or 221(1)(f) of the Rules ( [NAME] v [NAME] Estate Board , 2023 FCA 70 at para 44 [ TRREB ], citing [COMPANY] 2011 and [COMPANY] v [NAME] , 2007 FCA 350). However, when the party relies on paragraph 221(1)(a), no evidence is admissible pursuant to Rule 221(2), whereas evidence is admissible on a motion to strike a pleading brought under paragraph 221(1)(f) ( TRREB at para 45). [ 22 ] In this case, in support of its Motion to Strike, [NAME] relies on [NAME]’s third re-amended application for authorization in the [NAME], the decision in [NAME]’s appeal brief before the QCCA , the decision in [NAME] and [NAME]’s application for leave to appeal to the SCC. While the present reasons and order were under advisement, [NAME] also provided the Court with a copy of the dismissal by the SCC of [NAME]’s application for leave to appeal the QCCA decision. [ 23 ] Given the issues raised by the Motion to Strike, I also examined [NAME]’s and [NAME]’s memoranda of facts and law at the authorization stage before the QCCS in the [NAME], including [NAME]’s supplemental argument plan in response, [NAME]’s application for permission to present indispensable new evidence at the QCCA, the judgment of the QCCA on that request, reported at [NAME] c [NAME] , 2024 QCCA 1011 [ [NAME] ‒ 2 ], and both [NAME]’s and [NAME]’s appeal briefs before the QCCA . These are all publicly available documents and as the Federal Court of Appeal explained, “[t]his is not so much an act of taking judicial notice of a fact, but rather an assessment of what was decided in a previous proceeding and whether issue estoppel applies” ( TRREB at para 46). B. The application of the res judicata doctrine [ 24 ] [NAME] first argues that the Statement of Claim contravenes the principle of res judicata in common law, more specifically the preclusion arising from an issue already decided in a prior proceeding — also referred to as issue estoppel. [ 25 ] I do not agree. The three strict requirements of res judicata are to be analyzed in light of the class action context and, considering that the [NAME] and this file are, respectively, an authorized class action and a proposed class action, I find that these requirements are not met in this case. (1) Applicable legal principles [ 26 ] As the SCC recently reiterated, res judicata is one of several common law doctrines — including the doctrine of collateral attack and the doctrine of abuse of process by re-litigation — that exist to prevent abuse of the judicial decision-making process . Res judicata provides that a dispute, once finally decided between parties, is not subject to re-litigation by those parties ( [COMPANY] v 11368 [COMPANY] , 2026 SCC 15 at para 32 [ [COMPANY] ] citing Toronto (City) v [NAME], Local 79 , 2003 SCC 63 at para 22 [ [NAME] ], [NAME] v [COMPANY] , 2001 SCC 44 at para 20 [ [NAME] ] and [NAME] v [COMPANY] Co , 1997 NSCA 153 at para 21). [ 27 ] Issue estoppel , or preclusion arising out of an issue already decided, is one of the two components of res judicata , the other being cause of action estoppel ( [COMPANY] at paras 33, 65; [NAME] at para 23). The fundamental purpose of i ssue estoppel is to strike a balance between, on the one hand, a litigant’s interest in fairness and, on the other hand, the society’s interest in the conclusion of disputes and the finality of judicial decisions ( [COMPANY] at para 36; [NAME] at para 38; [NAME] at para 33). Re-litigating, in a new proceeding, an issue that has already been decided can only undermine the integrity of the judicial decision-making process. [ 28 ] The preconditions to the operation of issue estoppel are well known. They require that: (i) the same question has been decided; (ii) the judicial decision said to create the estoppel is final; and (iii) the parties to that judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies ( [NAME] v [NAME] (Regional Police Services Board) , 2013 SCC 19 at para 36 (Cromwell and Karakatsanis JJ., for the majority) and 92 (LeBel and Abella JJ., for the dissent) [ [NAME] ]; British Columbia (Workers’ Compensation Board) v [NAME] , 2011 SCC 52 at para 27 [ [NAME] ]; R v [NAME] , 2008 SCC 63 at para 49 [ [NAME] ]; [NAME] at para 23; [NAME] at para 25; [NAME] v Canada (House of Commons) , 2025 FCA 182 at para 20 [ [NAME] ]; Canada v [NAME] , 2024 FCA 22 at para 36 [ [NAME] ]; [NAME] v Canada , 2014 FCA 184 at para 14 [ [NAME] ]; [NAME] v Canada , 2014 FCA 8 at para 22 [ [NAME] ]; Indigenous Police Chiefs of [NAME] v Canada (Public Safety) , 2023 FC 916 at para 54 [ IPCO ]; [NAME] v Canada (Attorney General) , 2020 FC 730 at para 101 [ [NAME] ], aff’d 2021 FCA 94). The doctrine of issue estoppel thus precludes re-litigation of the same issue between the same parties, even where the issue is raised in the context of a different cause of action. [ 29 ] In [NAME] , the SCC observed that “the estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that were necessarily (even if not explicitly) determined in the earlier proceedings” ( [NAME] at para 24, cited in [NAME] at para 15 and [NAME] at para 21). That being said, it will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment ( [NAME] at para 24, citing Angle v M.N.R. , 1974 CanLII 168 (SCC), [1975] 2 SCR 248 at 255 [ Angle ]; [NAME] at para 21; see also [COMPANY] at para 235 (Côté J., dissenting)). Rather, “[f]or there to be issue estoppel, the question must not only have arisen in earlier proceedings, but must also have been fundamental to the substantive decision” [emphasis added] ( [NAME] at para 25, citing Angle at 254 - 255; see also [COMPANY] at para 33 (Wagner C.J., for the majority) and 235 (Côté J., dissenting); [NAME] at para 121 ([NAME]., partially concurring); [NAME] at para 24). [ 30 ] The test for applying issue estoppel involves two steps. First, the Court must be satisfied that the three preconditions for triggering the application of the doctrine have been met. If that is the case, the Court must then determine whether, in the exercise of its discretion, this form of estoppel should be applied with regard to the particular circumstances of the case. Thus, even if it is found that the three preconditions for issue estoppel have been met, the Court may nevertheless refuse to apply the doctrine in order to ensure that principles of fairness are adhered to, notably if its application would create an injustice ( [COMPANY] at paras 87, 89; [NAME] at paras 8, 29 - 30; [NAME] at para 33; [NAME] at para 37; [NAME] at paras 23‒24; IPCO at para 55; [NAME] at para 102). (2) Application to the case at bar (a) Identity of questions [ 31 ] [NAME] maintains that [NAME]’s allegations in the present matter are “lesser and included” within those set out by [NAME] in the [NAME], such that the Statement of Claim constitutes an attempt to re-litigate. According to [NAME], the issue in dispute here — namely, whether a national class action should be authorized based on the Competition Act for the alleged greenwashing conduct — has already been decided and dismissed in the [NAME]. [NAME] relies primarily on the decisions of the [NAME] of Appeal in [NAME] v [NAME] , 2011 SKCA 152 [ [NAME] ] and [COMPANY] v [NAME] , 2023 SKCA 55, and of the [ADDRESS] of Appeal in [NAME] v [COMPANY] , 2016 ABCA 21, leave to appeal to the SCC dismissed, no 36899 (December 22, 2016), to argue that it should not be faced with a “revolving door” of representative plaintiffs who serially advance certification application after certification application until one succeeds. [ 32 ] Relying on [NAME] v Québec ( [NAME] ) , 2006 CanLII 33682 (ONSC), [2006] OJ No 3998 [ [NAME] ], aff’d in 2008 ONCA 573 [ [NAME] CA ], [NAME] further maintains that the fact that the issue in dispute was considered at the certification stage, rather than on the merits, has no impact on the analysis of the requirements of the doctrine of res judicata and, similarly, on those of abuse of process by re-litigation. [ 33 ] In reply, [NAME] argues that the only legal conclusion reached by the [NAME] is that [NAME], a Quebec resident who purchased shopping bags from [NAME] stores in Quebec, failed to satisfy the “arguable case” requirement of paragraph 575(2) of the Code of Civil Procedure , CQLR c C-25.01 [CCP] with respect to consumers who reside outside of Quebec and who purchased said bags from [NAME] stores outside of Quebec. She contends that this conclusion has no bearing on her claim filed before this Court. [ 34 ] I am inclined to agree with [NAME]. [ 35 ] The doctrine of issue estoppel is concerned first and foremost with the questions that were actually decided in the other proceeding. However, the context in which a decision was rendered — here, the fact that it was issued at the authorization stage — must be taken into account. Seized with the Motion to Strike, I must therefore determine whether the same questions were decided in the earlier litigation by comparing what was decided in the [NAME] with what is alleged in [NAME]’s Statement of Claim, and by conducting a comparative assessment of the facts raised in the two proceedings. In short, I must assess what was actually decided in the [NAME] ( TRREB at para 46). [ 36 ] After such an examination, I am unable to conclude that there is an identity of questions between the [NAME] and [NAME]’s Statement of Claim because of (i) the specific nature of the authorization stage of a class action in Quebec and (ii) the differing factual allegations and evidence underlying the two proceedings. (i) The nature of the authorization stage of a class action in Quebec [ 37 ] It is essential not to conflate or confuse the authorization stage of a class action with the hearing of the action on the merits after it has been authorized. It must be borne in mind that a judgment authorizing a class action is purely procedural in nature and entails no determination on the merits against the defendant ( Infineon Technologies AG v Option consommateurs , 2013 SCC 59 at paras 58–59). At the authorization stage, [NAME] must avoid ruling on the legal merits of the conclusions sought in light of the facts alleged ( L’Oratoire Saint-Joseph du Mont-Royal v JJ , 2019 SCC 35 at para 55; [NAME] at para 10). [ 38 ] It is true that the doctrine of issue estoppel applies to interlocutory orders and thus to certification orders issued in the context of class proceedings . Indeed, while certification orders (or in Quebec, authorization orders) do not dispose of the entire proceeding, they may yield final rulings on issues going to the merits of the case, such as class definitions or common questions ( [NAME] at paras 39 - 42). [ 39 ] A close reading of the decisions in [NAME] and [NAME] reveals that the sole basis for refusing to authorize a national class action was the absence of any evidence adduced by [NAME] with respect to the rest of Canada ( [NAME] at para 34). Indeed, the QCCS found that [NAME]’s allegations that [NAME]’s shopping bags are also not recyclable elsewhere in Canada were speculative, untethered to any facts and could not be taken as true as they were not otherwise supported by some evidence to that effect. As such, the QCCS found that those allegations did not meet the requirement of paragraph 575(2) of the CCP, in that the facts alleged did not “appear to justify the conclusions sought” — that is, the certification of a national class action. [ 40 ] Then, the QCCA deferred to the QCCS on the issue of whether the allegations regarding the rest of Canada were vague, general, imprecise or speculative, and whether sufficient evidence was adduced to allow the court to take these allegations as true. The QCCA concluded that the QCCS made no overriding and palpable error in that respect ( [NAME] at paras 8‒13). [ 41 ] According to [NAME], this is precisely the issue the Court will be tasked to adjudicate at the upcoming hearing of [NAME]’s certification motion — namely, whether the pleading discloses a reasonable cause of action within the meaning of paragraph 334.16(1)(a) of the Rules for the rest of Canada. [NAME] submits that this issue has necessarily already been decided by the [NAME], since the factual matrix and the evidence adduced in the [NAME] are the same as those before this Court in the present proceeding.

Accordingly, if the [NAME] determined that those facts and that evidence were insufficient to authorize a class action outside of Quebec, this Court cannot revisit that conclusion in the context of this matter. [ 42 ] [NAME]’s argument may appear attractive at first sight, I am not persuaded that the circumstances of this case allow to conclude to an identity of questions. It is true that given that the SCC denied [NAME]’s leave to appeal, the decision of the QCCA in [NAME] yielded a final ruling with respect to the class definition. But that ruling only applies to the [NAME]. [ 43 ] I agree with [NAME] that, in deciding as it did, the QCCS simply concluded that there was a lack of evidence to authorize the claims for consumers in the rest of Canada, but did not adjudicate on those claims. The QCCS made no findings on the issue of whether [NAME]’s shopping bags were recyclable outside Quebec. It simply observed that [NAME], a Quebec resident, provided evidence on the recyclability of bags in her province but was silent on the factual matrix prevailing in the rest of Canada. The absence of evidence on a particular fact cannot be assimilated to evidence of the absence of such fact. In other words, the QCCS’s and QCCA’s refusal to authorize a national class was not based on any adjudication regarding the merits of the claims made by residents in the rest of Canada. On the contrary, the refusal was based on the fact that [NAME]’s action (and the evidence she adduced) was limited to the context prevailing in Quebec and that the facts alleged in relation to the situation in the rest of Canada were speculative and unsupported by any evidence. In other words, the question now raised by [NAME] in her proposed class action was not truly addressed in the [NAME]. [ 44 ] As discussed above, a decision refusing certification is procedural in nature. A refusal to certify a class action for certain putative class members does not amount to any adjudication of the substantive rights or claims asserted. Depending on the circumstances, the underlying action may well continue as an ordinary proceeding. Bearing that in mind, the decision of the QCCA in [NAME] cannot logically be interpreted as foreclosing any recourse by consumers in the rest of Canada against [NAME] in respect of the alleged misconduct and resulting damages. If [NAME] is not barred from pursuing an individual action against [NAME] based on her own claim, I see no basis for concluding that she should be precluded from seeking certification of a class proceeding based on that same claim for class members residing in the rest of Canada. [ 45 ] I also emphasize that, in this case, the [NAME] did not wholly dismiss [NAME]’s cause of action under the Competition Act ; they ultimately certified it, while limiting its scope to class members based in Quebec. They did so because [NAME] omitted to provide any evidence on the non-recyclability of the shopping bags outside her province of residence. I find it difficult to accept that, where an ambitious or reckless plaintiff files a proposed class action covering putative class members residing beyond the plaintiff’s jurisdiction but fails — whether by oversight, inadvertence, carelessness, negligence or even incompetence — to adduce sufficient materials or evidence as to the situation beyond their own jurisdiction (and immediate personal interests), this course of action could have the perverse effect of annihilating or extinguishing the potential recourses of the then excluded putative class members. (ii) The differing allegations and evidence underlying the two proceedings [ 46 ] But there is more. [ 47 ] It is true that [NAME]’s 3 rd re-amended Application to authorize the bringing of a class action and to appoint the status of representative plaintiff and [NAME]’s Statement of Claim have important similarities, particularly with respect to the impugned conduct of [NAME]. This is not surprising; after all, both actions concern the same nationwide conduct by [NAME] allegedly contrary to the Competition Act . However, there are also notable factual differences between the two proceedings: the consumer’s place of residence, the place where [NAME]’s alleged wrongful conduct occurred and the place where the alleged harm was suffered. [ 48 ] In [NAME]’s case, that place is [NAME]. It is not Quebec as was the case for [NAME]. Furthermore, with respect to the allegations concerning the non-recyclability of [NAME]’s shopping bags in the rest of Canada, I note that at least two factual elements cited by [NAME] in her Statement of Claim were not in the [NAME] and have not been examined by the [NAME]. [ 49 ] First, [NAME] alleges that she placed a green [NAME] shopping bag in her household recycling bin. However, the bag was not collected by the recycling company responsible for the collection. Instead, the company left [NAME] a sticker indicating that the bag is not recyclable (Statement of Claim at para 17). [ 50 ] Second, [NAME] includes an article published in June 2024 in the newspaper The Star entitled “Those reusable bags aren’t actually recyclable in [NAME]. Here’s why and what you can do with them instead” (Statement of Claim at para 18). This article reports, among other things, a statement made by a representative of [NAME] inviting [NAME] consumers to verify which materials and products are accepted by their local recycling facility. Once again, this allegation clearly relates to a situation existing in [NAME] and was not examined by either the QCCS or the QCCA in the context of the [NAME]. [ 51 ] [NAME] argues that this second piece of evidence has already been the subject of a decision by the QCCA, which concluded that this The Star article had questionable probative value. This assertion is not entirely accurate. [NAME]’s argument overlooks the context in which that decision was rendered. At the time, the QCCA was hearing an interlocutory motion brought by [NAME] seeking leave to file new evidence on appeal pursuant to section 380 of the CCP. In that context, the QCCA found that the The Star article, “while perhaps relevant in some respect to the issues between the parties, does not meet the specific requirement of indispensability” on appeal ( [NAME] ‒ 2 at para 1). It is for this reason that the article was not admitted into evidence. At no point did the QCCA address whether the The Star article supported the allegation that the bags were not recyclable elsewhere in Canada, or whether that evidence was sufficient to establish an arguable cause of action for the consumers outside of Quebec within the meaning of section 575 of the CCP. The evidence was simply not admitted by the QCCA and thus never considered. [ 52 ] In other words, the QCCA never determined whether this The Star article constituted evidence sufficient to take the otherwise speculative allegations as true, and whether those facts appeared to justify the conclusions sought. Moreover, this evidence post-dates the decision of the QCCS in [NAME] and thus could not have been filed at the authorization stage in the [NAME]. [ 53 ] I pause to add that, in her Statement of Claim, [NAME] also refers to two YouTube videos from 2022 and 2023 showing shopping bags displayed in [NAME] stores in [NAME], bearing the allegedly false recyclability label (Statement of Claim at paras 39‒41). [ 54 ] In short, there are several meaningful factual differences between the [NAME] and [NAME]’s Statement of Claim, such that the questions in dispute cannot be qualified as identical as per the doctrine of res judicata . [ 55 ] Having said that, I make no comment, at the stage of the present Motion to Strike, as to whether these additional factual allegations are sufficient to establish that [NAME]’s proposed class action discloses a reasonable cause of action to be certified in this Court under the Rules. That issue will be decided by the Court at the hearing of [NAME]’s motion for certification. It remains entirely open for [NAME] to oppose certification of the class action if it believes that the requirements of Rule 334.16(1) are not met. However, the existence of these additional factual allegations and supporting evidence is sufficient to defeat [NAME]’s Motion to Strike, since they have not previously been examined by the [NAME]. In other words, whereas the [NAME] and [NAME]’s proposed class action effectively challenge the same [NAME] conduct, they rely on different sets of facts. There is some overlap between the two actions, but they are not identical. [ 56 ] Given that the criteria of res judicata are cumulative, the preceding analysis on the identity of questions is sufficient to conclude that [NAME] is not precluded from introducing her proposed class action before this Court. However, for the sake of completeness, I will briefly review the two other criteria for res judicata . (b) The finality of the decision in the [NAME] [ 57 ] There is no doubt that the second criterion — the finality of the judgment relied upon — is met. At the time of the hearing on this motion, the SCC had not decided on the leave application to appeal the [NAME] decision, meaning that there was a live debate between the parties as to whether the pending application for leave to the SCC was a bar to apply the doctrine of res judicata . However, [NAME]’s leave application was dismissed while the present reasons and order were under advisement. In those circumstances, I am now satisfied that the second criterion of res judicata is met. (c) The identity of parties [ 58 ] Turning to the third criterion, [NAME] argues that there is an identity of parties between the [NAME] and this case. Emphasizing that this notion must be given a broad and liberal interpretation, including in the context of class actions, [NAME] submits that [NAME] and [NAME] are privies of one another, and that [NAME] is therefore barred from bringing the present proceeding. [ 59 ] With respect, I do not share that view, especially given the legal scheme applicable to class actions. [ 60 ] It is true that when [NAME] sought to have a national class action certified, [NAME] was a putative class member to the [NAME]. However, there is diverging case law as to whether putative class members can be considered “parties” to the earlier proceeding for the application of the doctrine of issue estoppel. [NAME] did not submit any case law from this Court but relied on decisions from other jurisdictions which, though not binding upon me, may have persuasive value. [ 61 ] In some cases, the [NAME] [ONSC] found that putative members in class action proceedings were privies and thus estoppel-barred to file another class action in another forum ( [NAME] v [COMPANY] , 2004 CanLII 12080 (ONSC), [2003] OJ No 5481 at para 16 [ [NAME] ], aff’d in 2004 CanLII 4327 (ONCA) [ [NAME] CA ], leave to appeal to the SCC dismissed, no 30544 (March 3, 2005); [NAME] at paras 86‒92). However, on both appeals filed in those two cases, the [NAME] of Appeal declined to address the question of issue estoppel ( [NAME] CA at para 10; [NAME] CA at para 68). The question of the legal standing of putative members for the application of res judicata was also flagged but not resolved by the [NAME] of Appeal in [NAME] ([NAME] at paras 33‒34). In other cases, it has been held that a putative member is not a party to the litigation until the time of certification and the opt-out period has terminated ( [COMPANY] v [NAME] , 2006 CarswellOnt 8405, [2006] OJ No 5234 at paras 16 - 18; [NAME] v [COMPANY] , 2001 CarswellOnt 3308, [2001] OJ No 3682 at paras 15‒16, aff’d 2002 CarswellOnt 1797, [2002] OJ No 2010). [ 62 ] I find that this latter position is more consistent with the legal principles applicable to class actions. Class actions are merely procedural vehicles designed to extend the substantive rights of the representative plaintiff to the entire class. At the certification stage, it is under the lens of the claim of the proposed representative plaintiff that the criterion of the reasonable cause of action is analyzed and tested. Before certification, putative members have limited participatory rights, if any. For example, this Court has previously found that putative class members must await the certification decision before seeking rights of participation under Rule 334.23 ( [NAME] v Canada , 2022 FC 780 at paras 17, 22). It is also after the certification order that the notice to class members is diffused and that such class members may exercise their litigation autonomy by opting out of the proceeding. Moreover, it is the certification order that crystallizes the participation of the class members to the proceeding and confirms who will be bound by the judgment to be rendered on the merits of the class action and who may receive any benefit resulting from the judicial proceeding. [ 63 ] In addition, the decision in [NAME] can readily be distinguished. In that case, [NAME] initially brought a motion for certification of a class action on behalf of a group that included [NAME]. After the ONSC concluded that [NAME]’s action disclosed no reasonable cause of action, [NAME] amended his certification motion, and [NAME] in turn filed a motion that was virtually identical to [NAME]’s newly amended motion. The ONSC held that [NAME]’s amended motion still disclosed no reasonable cause of action. That conclusion, the court said, necessarily applied to [NAME]’s motion as well. When considering whether [NAME] should be granted leave to amend his motion, the ONSC answered in the negative, since “for all material purposes [NAME] and [NAME] are so interchangeable (and by their counsel) that they are in practical effect the alter ego of each other” ( [NAME] at para 18). Thus, the ONSC concluded that [NAME] was a privy of [NAME] and was therefore caught by the doctrines of issue estoppel and res judicata . Contrary to the present case, [NAME] was a matter where two class actions were filed before the same court, and where the class action was dismissed for all class members. Here, the QCCS and this Court have concurrent jurisdiction with respect to the Competition Act , and [NAME]’s proposed class action was not dismissed in its entirety but only with respect to certain putative class members. [ 64 ] Finally, the QCCS and QCCA both declined to certify a national class action in the [NAME]. Thus, [NAME] never became the fiduciary of [NAME]’s interests and conversely, [NAME] never became a class member nor a party to the litigation in the [NAME]. There is only legal identity between the representative plaintiff and an actual class member — not a putative class member. Without the certification of a class in which they are included, a court has no power to bind putative class members. In my view, concluding otherwise would result in absurd consequences and in an unjust loss of rights. [ 65 ] While the concept of “privity” is somewhat elastic and determinations must be made on a case-by-case basis, the privity requirement exists to ensure mutuality so that strangers to an earlier litigation, who become party to a subsequent litigation, are not improperly bound by the earlier decision ( [NAME] at paras 59‒60). As the SCC recently held, “[t]he primary concern at this stage of the test is ensuring that a party is not bound to an outcome it did not have a reasonable chance to advocate for in the same capacity as the one in which it is estopped” ( [COMPANY] at para 102). In other words, “[c]ourts must exercise caution to ensure that parties had a full opportunity to argue the issues in the prior proceeding” ( [COMPANY] at para 88). [ 66 ] Here, interpreting the QCCA ruling in the [NAME] as preventing consumers in the rest of the country to file an action against [NAME] because of deficiencies in [NAME]’s evidence before the [NAME] would be stretching the notion of privity too far. I accept that, in abstracto , [NAME] had an interest in having the [NAME] certified as a national class action. However, in the present case, I find that accepting [NAME]’s position would result in [NAME] being improperly bound by a decision where, in the absence of any notice nor of any explicit participatory rights, she had no reasonable chance to assert her rights ( [COMPANY] at para 102). [ 67 ] Indeed, there is no evidence that she had notice of that earlier proceeding nor that she had any control over it. This is consistent with the Quebec class action regime where notice to class members is only disseminated after authorization (paragraph 576(2) of the CCP). [NAME] is not otherwise named in the first proceeding and there is no indication that she was present at the hearing or that she adduced any evidence. This is clearly not a case where [NAME] was aware of the litigation happening in the [NAME] and understood that she would be bound by its outcome ( [COMPANY], [NAME] v [COMPANY], [NAME] , 2026 ONCA 212 at para 37 a contrario ). [ 68 ] [NAME] places considerable emphasis on the fact that the [NAME] and [NAME] files are being conducted by the same counsel. However, I reject [NAME]’s submission that I should analyze the issue of identity of parties for the purpose of res judicata on the basis that the law firm was the real litigant or that the links between the law firm and [NAME], and then between the law firm and [NAME], are sufficient to make them privies of one another. The solicitors of record are not co-plaintiffs or de facto  plaintiffs. The legal claims that are being advanced belong to [NAME], to [NAME] and to the other members of the class (in the [NAME]) and the proposed class members (in this case), not to the law firm ( [NAME] v [NAME]’s Restaurants of [COMPANY] , 2005 CarswellOnt 544, [2005] OJ No 506 at paras 49‒50). As such, I cannot find that there is an identity of parties between the [NAME] and the present case on the basis of commonality of counsel. (3) Conclusion on res judicata [ 69 ] In sum, for those reasons, I am not satisfied that the strict criteria and preconditions of res judicata are met in this case. There is therefore no need to proceed to the second step of the analysis and to determine whether, in the exercise of my discretion, this form of estoppel should be applied with regard to the particular circumstances of the case. [ 70 ] I nevertheless underline that it would be strange, and contrary to the essence of class action proceedings, if a decision made by a court in one province, based on an absence of factual evidence regarding the situation of potential class members outside of its jurisdiction, could have the effect of blocking recourses by affected individuals in other provinces and thereby deny them access to justice. Even more so in a situation where, as is the case here, the court does not dismiss an entire cause of action in a proposed class action but only refuses certification with respect to putative class members who happen to reside outside of this court’s jurisdiction. C. The abuse of process by way of re-litigation [ 71 ] Alternatively, [NAME] argues that, should the strict conditions of res judicata not be met, the Statement of Claim shall nevertheless be struck based on the doctrine of abuse of process by re-litigation. This scenario is expressly contemplated by Rule 221(1)(f). [ 72 ] Once again, I am not convinced that this is a case in which I should exercise my discretion to strike the Statement of Claim based on an alleged abuse of process, either for re-litigation or collateral attack. (1) Applicable legal principles [ 73 ] Abuse of process by re-litigation is a residual, discretionary and flexible doctrine of broad application and scope, which bars the re-litigation of issues. It is unencumbered by the strict requirements of res judicata and issue estoppel ( [COMPANY] at para 43; [COMPANY] v [NAME] , 2022 SCC 29 at paras 34‒35; [NAME] at paras 37 - 38, 42; [NAME] at para 30). [ 74 ] The courts have applied the doctrine of abuse of process to preclude re-litigation in circumstances where the strict requirements of issue estoppel are not met, but where allowing the litigation to proceed would nonetheless be manifestly unfair to a party to the litigation before it or violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice ( [COMPANY] at para 43; [NAME] at para 33; [NAME] at para 37). One should also add the court’s desire for comity and mutual respect between jurisdictions ( [NAME] v Canada ([NAME]) , 2015 FCA 227 at para 43, application for leave to the SCC dismissed, no 36889 (June 23, 2016) [ [NAME] ]). This is particularly so where the litigation is essentially intended to reopen an issue that has already been decided. [ 75 ] Ultimately, the two doctrines are complementary, since the rationale underlying the doctrine of abuse of process by re-litigation are the same as those supporting issue estoppel, namely: (i) the expectation that there be an end to litigation and that no one should be twice vexed by the same cause; (ii) the preservation of the courts’ and the parties’ resources; (iii) the upholding of the integrity of the legal system in order to avoid inconsistent results; and (iv) the protection of the principle of finality of proceedings, which is crucial to the proper administration of justice ( [NAME] at para 38; see also [COMPANY] at para 42 and [COMPANY] v [NAME] , 2004 BCSC 484 at para 44). [ 76 ] The doctrine of abuse of process by re-litigation should be applied sparingly and is relevant only where the technical requirements of res judicata  are not made out ( [COMPANY] at para 65 in fine ). (2) Application to the case at bar [ 77 ] [NAME] places considerable emphasis on the fact that both the [NAME] and [NAME] files are conducted by the same law firm and same counsel. [NAME] even submits that this amounts to a “coordinated attempt by [plaintiffs’ counsel] to have a class action authorized at all costs against [[NAME]]” [translation]. [ 78 ] It is not disputed that the Court must be concerned with preserving the integrity and credibility of the class action regime, both in the eyes of class members and in the view of public observers ( Option Consommateurs c Infineon Technologies, a.g. , 2013 QCCS 1191 at para 68). [ADDRESS] must remain vigilant against potential excesses in what some have described as “entrepreneurial lawyering” in class actions ( [NAME] v [COMPANY] , 2016 QCCA 1299 at para 102 [ [NAME] ]), or in the emergence of a “class action industry” ( [NAME] v [COMPANY] , 2025 QCCA 1225 at para 51, motion to set aside dismissed 2025 QCCA 1608). [ 79 ] However, nothing supports the conclusion that the Court is faced with such a situation in the present case. While this may certainly be a relevant consideration, the decision in [NAME] — relied on by [NAME] — does not stand for the proposition that the mere fact that the same counsel act for the representative plaintiff in two or more class actions necessarily amounts to an abuse of process. Moreover, in [NAME] , the issue was not parallel actions in multiple jurisdictions, but multiple actions in one jurisdiction. In any event, the analysis of whether a situation amounts to an abuse of process will always be contextual and fact specific. [ 80 ] In this regard, I consider it a propos to cite the comments of Justice Jacques Dufresne of the QCCA, who said the following in Fortier c [NAME] , 2014 QCCA 195 at paragraph 147 (cited in [NAME] at para 103): [147] That said, judges may, on occasion, detect signs suggesting that the steps giving rise to the motion [NAME] strongly the imprint of counsel; however, this does not necessarily discredit the person asserting a cause of action that appears sufficiently serious, where, without that person, the group would be deprived of the exercise of a right. [Translation] [ 81 ] In the present case, it must be underscored that consumers outside Quebec also benefit from the provisions of the Competition Act — a statute applicable nationwide. Those consumers are not covered by the [NAME]. Given the nature of the authorization stage, and the absence of evidence regarding the rest of Canada, the [NAME] did not undertake any analysis of the merits of the claims of consumers residing outside Quebec. The reason there was no national class action authorized in Quebec was [NAME]’s own failure to adduce any or enough evidence with respect to [NAME]’s alleged wrongful conduct in the rest of Canada. [ 82 ] Thus, contrary to what [NAME] submits, I am not convinced that “allowing this action to proceed would clearly undermine the reputation of the justice system and of class actions in Canada” [translation] . [NAME]’s argument essentially amounts to saying that the refusal of the [NAME] to authorize a national class in the [NAME] because of [NAME]’s failure to offer evidence regarding the situation outside the province of Quebec deprives all consumers in the rest of Canada who purchased the shopping bags in question from [NAME] of the opportunity to assert the rights they claim to have against the company. It seems to me that such a conclusion would be detrimental to the interests of justice and to the laudable objectives of the class action regime — namely, access to justice, judicial economy and behaviour modification. [ 83 ] I see no reason, at the stage of this Motion to Strike, to prevent consumers in the rest of Canada from availing themselves of the rights conferred upon them by the Competition Act and by the federal class action regime. D. The abuse of process by collateral attack [ 84 ] I now turn to the third argument raised by [NAME], namely, abuse of process by collateral attack. (1) Applicable legal principles [ 85 ] A court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed ( [NAME] at para 33; [NAME] at para 20, both citing [NAME] v The Queen , 1983 CanLII 35 (SCC), [1983] 2 SCR 594 at 599). The rule against collateral attack comes into play when a party attempts to nullify the result of another proceeding outside of the proper channels for the review of that decision ( [NAME] at para 39; see also [NAME] at para 28). It focuses on the attack of the order itself and its legal effect ( [NAME] at para 34). Once again, the doctrine of collateral attack exists to prevent an abuse of the judicial decision-making process ( [COMPANY] at para 32; [NAME] at para 20) as well as attempts to overturn decisions made in other courts ( [NAME] at para 39). Where an application or an action amounts to a collateral attack, the Court may strike it pursuant to Rules 221(1)(a) and (f). However, the ambit of the doctrine is narrow ( [NAME] at para 39 in fine ). (2) Application to the case at bar [ 86 ] [NAME] submits that the Statement of Claim is specifically aimed at challenging the validity of [NAME] by attempting to obtain a different outcome before a different forum, namely, this Court. However, says [NAME], the judgment of the QCCA cannot be called into question except through the appeal procedures provided by law, that is, before the SCC. [ 87 ] I do not agree. I find that nowhere in the Statement of Claim does [NAME] attempt to attack the decision in [NAME] and its legal effect. That decision remains fully in force with respect to the class action authorized in the [NAME]. The decision in [NAME] yielded a final result with respect to a class definition restricted to Quebec, but there is no overlap between the class authorized in Quebec in the [NAME] and the proposed class in this file. In sum, I find no collateral attack on the judgments issued in [NAME] and [NAME] . [ 88 ] [NAME]’s third argument in support if its Motion to strike must therefore also fail. E. The possibility to allow [NAME] to amend her Statement of Claim [ 89 ] Given the conclusion I reached, there is no need to discuss whether [NAME] should be granted the possibility to amend her Statement of Claim.

IV. Conclusion [ 90 ] For the foregoing reasons, [NAME]’s Motion to Strike is dismissed. Given the concurring jurisdictions of the QCCS and this Court in matters involving the Competition Act and the differences in evidence adduced between the [NAME] and this one, I am not persuaded that this is a clear case where the strict requirements of the doctrines of res judicata are met or where an abuse of process is occurring. I will therefore not exercise my discretion, under Rule 221, to strike the Statement of Claim on any of those grounds before the certification hearing. [ 91 ] As agreed by the parties in a letter to the Court dated December 10, 2025, no costs are awarded. This is consistent with Rule 334.39.

ORDER IN T-2174-25 THIS COURT ORDERS that : The Defendants’ motion to strike is dismissed. No costs are awarded. blank "Denis Gascon" blank Judge FEDERAL COURT SOLICITORS OF [NAME] : T-2174-25 STYLE OF CAUSE: [NAME] v [NAME]. ET AL PLACE OF HEARING : Montréal, Québec DATE OF HEARING: JANUARY 15, 2026

JUDGMENT AND

REASONS : GASCON J. DATED: June 17, 2026 APPEARANCES : [NAME] FOR THE PLAINTIFF [NAME] FOR THE DEFENDANTS SOLICITORS OF RECORD : [NAME], Québec FOR [COMPANY] Montréal, Québec FOR THE DEFENDANTS