Simon's Megalomaniacal Legal Resources

Class Proceeding (Ont) - Certification - General [CPA s.5]

. David v. Loblaw Companies Limited [general]

In David v. Loblaw Companies Limited (Div Court, 2024) the Divisional Court considered (and dismissed) an appeal of a case conference order that 'settled' terms of a larger class action certification order, here grounded in Competition Act law.

Here, the court canvasses basics of class action 'certification':

[13] Subsection 5(1) of the CPA states that a court shall certify a class proceeding if:

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[14] In Bowman v. Ontario, 2022 ONCA 477, 162 O.R. (3d) 561, at para. 25, Brown J.A. stated that the following general principles govern the certification of a class proceeding:

The CPA should be construed generously in a way that gives full effect to the benefits foreseen by the drafters (citations omitted);

The onus is on the representative plaintiff to show why the certification criteria have been met;

The certification stage is decidedly not meant to be a test of the merits of the action. The certification stage focuses on the form of the action. The question is not whether the claim is likely to succeed but whether the suit is appropriately prosecuted as a class action (citations omitted);

The plaintiff must show “some basis in fact” for each of the certification criteria, other than the requirement that the pleadings disclose a cause of action (citations omitted);

In assessing whether the representative plaintiff has met s. 5(1)(a)’s criterion, the court must ask whether, taking the pleaded facts to be provable and true, it is “plain and obvious” that the pleading discloses no reasonable cause of action (or cause of action supportable at law), or the claim has no reasonable prospect of success…. While the approach must be generous and err on the side of permitting a novel but arguable claim to proceed, at the same time a claim will not survive an application to strike simply because it is novel. If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck. [Citations omitted.]

. Price v. Lundbeck

In Price v. Lundbeck (Div Court, 2023) the Divisional Court considered (and dismissed) an appeal of a denial of a class action certification, here in a tort ('duty to warn') pharmaceutical case.

Here the court considers certification basics of the class proceeding regime:

[2] For the reasons set out below, this appeal is dismissed. The Class Proceedings Judge applied the correct legal principles, and his expertise, and denied certification.

....

[19] The Class Proceedings Judge employed the legal principles for certification, including that there was no preliminary review of the merits of the claim. The plaintiffs only had to show “some basis in fact” for each of the certification criteria other than the requirement that the pleadings disclose a cause of action. And “some basis in fact” is a low evidentiary standard. The court could not resolve conflicting facts and evidence at the certification stage or opine on the merits of the plaintiffs’ claim.

....

[20] The Class Proceedings Judge noted the court’s important gate-keeping function, as underscored by the Supreme Court of Canada in Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477.

[21] In Pro-Sys, at para. 103, the Supreme Court emphasized “the importance of certification as a meaningful screening device.” Further, the Court held, at para. 104, that there is “limited utility in attempting to define “some basis in fact” in the abstract. Each case must be decided on its own facts. There must be sufficient facts to satisfy the [judge] that the conditions for certification have been met to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage”.

. Palmer v. Teva Canada Limited

In Palmer v. Teva Canada Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against a lower court dismissal of a class action certification motion:

A. Governing legal principles regarding certification

[26] Section 5(1) of the Class Proceedings Act, 1992 sets out five statutory criteria that must be established for a claim to be certified as a class action: (a) the pleadings must disclose a cause of action; (b) there must be an identifiable class; (c) there must be common issues; (d) the class action must be the preferable procedure; and (e) the proposed representative plaintiff must be appropriate. For the first element, the court must ask whether it is plain and obvious that no claim exists, assuming the facts alleged in the pleadings are true: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 25. For all the other elements, the representative plaintiff must establish some basis in fact that the requirement is met: Hollick, at para. 25.

[27] The certification motion is not meant to test the merits of the action – its focus is on the form of the action. The question is not whether the claim is likely to succeed but whether the suit is appropriately brought as a class action: Hollick, at para. 16; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, at para. 102.

. Bowman v. Ontario

In Bowman v. Ontario (Ont CA, 2022) the Court of Appeal set out basics of the certification of a class action:

IV. GOVERNING LEGAL PRINCIPLES REGARDING CERTIFICATION

[25] The principles regarding the certification of a class proceeding are well-established:

(i) In Ontario, s. 5 of the CPA contains the criteria for certifying class actions. The CPA should be construed generously in a way that gives full effect to the benefits foreseen by the drafters: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at paras. 14-15;

(ii) The onus is on the representative plaintiff to show why the certification criteria have been met;

(iii) The certification stage is decidedly not meant to be a test of the merits of the action. The certification stage focuses on the form of the action. The question is not whether the claim is likely to succeed but whether the suit is appropriately prosecuted as a class action: Hollick, at para. 16; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, at para. 102.

(iv) The plaintiff must show “some basis in fact” for each of the certification criteria, other than the requirement that the pleadings disclose a cause of action: Hollick, at paras. 25-26; Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at para. 27; Shah v. LG Chem Ltd., 2018 ONCA 819, 142 O.R. (3d) 721, at para. 22, leave to appeal refused, [2018] S.C.C.A. No. 520; Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, leave to appeal refused, 2019 CanLII 37480 (SCC), at para. 41; ...