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Class Proceeding (Ont) - Certification - Standard of Proof. Frayce v. BMO Investorline Inc. [standard of proof versus law]
In Frayce v. BMO Investorline Inc. (Div Court, 2024) the Divisional Court considered an appeal from a denied motion for class certification, here addressing the tension in this task as a procedural or a substantive (merits) one:
[13] In order to certify an issue as a common issue, the plaintiff must show some basis in fact that (1) the proposed common issue actually exists; and (2) the proposed common issue can be answered in common across the entire class (Butten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 6098 (Div. Ct.), at paras. 14-15; Kuiper v. Cook (Canada) Inc. 2020 ONSC 128 (Div. Ct.) at paras. 26-36).
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[16] According to the Plaintiffs, the “some basis in fact” test is an evidence-based requirement that cannot apply to a question of law. Whether the impugned conduct contravened applicable Canadian securities law is a question of law that cannot be subject to an evidentiary burden, especially at the certification stage. To do so inevitably involves straying into the merits of the proposed action. As confirmed by the Supreme Court in Pro-Sys Consultants v. Microsoft Corporation, 2013 SCC 57, [2013] 3 SCR 477, “the certification stage is decidedly not meant to be a test of the merits of the action”; it “is concerned with form and with whether the action can properly proceed as a class action.”(para. 99)
[17] The Plaintiffs rely on the decision of the Supreme Court of British Columbia in Bowman v. Kimberly-Clark Corporation, 2023 BCSC 1495 to support their argument that questions of law cannot be subject to the evidentiary component of the “some basis in fact” requirement. At para. 137 of Bowman the Court states:The “existence” of legal issues will not always be amenable to evidentiary demonstration, although the requirement that they are based on common facts is amenable to evidence and is the one step evidentiary test described in Pro-Sys. For example, aggregate damages have spawned much of the law on the evidentiary burden regarding common issues ... . [18] After discussing how the requirements for an award of aggregate damages under the Class Proceedings Act, RSBC 1996, c 50 are not matters of evidence the court goes on to state:In summary, I conclude that the two-step evidentiary test as it has been articulated is not appropriate for every common issue that might be sought to be certified in a given case. It may overstate the burden and run the risk of a merits-focussed inquiry. It may misstate the burden. While there must be common issues to certify a class proceeding, their existence is determined by whether there are live issues of fact or law which is not always an evidentiary matter. (para. 139). [19] Contrary to the submissions of the Plaintiffs, Bowman does not stand for the proposition that questions of law are not subject to the “some basis in fact” analysis. Rather, it highlights the necessity to focus on whether there is a legal issue to be determined. Sometimes answering that question will require an examination of the evidence; sometimes it will not.
[20] In Pro-Sys, supra, at para. 103, the Supreme Court emphasized the importance of certification “as a meaningful screening device”. While the standard for assessing evidence at the certification stage does not involve a determination of the merits, it does involve more than a “superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny.”
[21] Recently, the Federal Court of Appeal highlighted the importance of the two-step approach to achieving the objectives of certification. In Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89 at para. 80, the Court states:... full agreement with the Motion Judge that the two-step approach is the only one consistent with the underlying rationale and the purpose of the certification process. If that process is to be meaningful and to achieve its objective to root out unfounded and frivolous claims, there must be a minimum assessment of the proposed common issue to ensure that it has an air of reality. Otherwise, the certification would not achieve its goal and almost any proposed certified action would have to be certified ... Allowing a common issue lacking a basis in fact to proceed to trial would certainly not promote judicial economy, nor would it promote behavioural modification, or enable access to justice. . Leroux v. Ontario
In Leroux v. Ontario (Ont CA, 2023) the Court of Appeal considered an appeal of a class action certification refusal from the Divisional Court, here regarding SSPSIPDDA applicants. The alleged causes of action were negligence and s.7 Charter.
This quote addresses the standard of proof for class action certification issues:[91] ... To certify common issues, there must be “some basis in fact” supporting the conclusion that the proposed issues are common to all class members and their resolution will avoid duplication of fact-finding or legal analysis: Cirillo v. Ontario, 2021 ONCA 353, 486 C.R.R. (2d) 25, at para. 57, leave to appeal refused, [2021] S.C.C.A. No. 296. . Le Feuvre v Enterprise Rent-A-Car Canada Company
In Le Feuvre v Enterprise Rent-A-Car Canada Company (Div Court, 2023) the Divisional Court considered an appeal of a denial of a class action certification motion:[7] Against that factual background, the motion judge considered the certification test out in s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (CPA). Section 5(1) requires the court to certify a class proceeding if all the following criteria apply:a. The pleadings disclose a cause of action (s. 5(1)(a));
b. There is an identifiable class of two or more persons (s. 5(1)(b));
c. The class members’ claims raise common issues (s. 5(1)(c));
d. A class proceeding would be the preferable procedure for the resolution of the common issues (s. 5(1)(d)); and
e. There is a representative plaintiff who meets the statutory requirements (s. 5(1)(e)). [8] The motion judge noted that it is well settled that the evidential threshold on a certification motion is relatively low, requiring the plaintiff to establish “some basis in fact” for the claim, which does not involve an assessment of the claim’s merits: at para. 9. The motion judge then considered the application of the first four certification criteria. . Price v. Smith & Wesson Corporation
In Price v. Smith & Wesson Corporation (Ont CA, 2025) the Ontario Court of Appeal considered the preliminary standard by which class action certification elements should be judged:(a) The Governing Principles for Certification
[90] On a certification motion, the court does not reach the merits of the case: Bowman, at para. 25; Pro-Sys, at paras. 102-05. Instead, it asks whether there is “some basis in fact” for each of the certification criteria, other than the cause of action criterion: Pro-Sys, at para. 99. The “some basis in fact” standard sets a low bar. It “is entirely different from requiring proof of the claim”, and “merely asks whether there is some minimal evidence in support of it”: Lilleyman, at para. 74 (emphasis added).
[91] Because the standard is so low, expert evidence is not always required on a certification motion. And if the parties do lead expert evidence, the court does not resolve competing expert opinions, weigh them, or otherwise analyze the merits: Pro-Sys, at paras. 102, 126; Lilleyman, at para. 74. . Davis v. Amazon Canada Fulfillment Services
In Davis v. Amazon Canada Fulfillment Services (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action certification appeal, here denied at the motion level:[40] The threshold for certification is not in dispute. Pursuant to s. 5(1) of the CPA:(1) The court shall, subject to subsection (6) and to section 5.1, certify a class proceeding on a motion under section 2, 3 or 4 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. [41] The motion judge recognized that the pleadings should be read in a generous and purposive manner so as to give effect to the goals of the Act, including promoting access to justice, encouraging behaviour modification and promoting the efficient use of judicial resources. He also instructed himself properly on the low evidentiary threshold applicable to the certification analysis and that the moving party must show “some basis in fact” for the certification requirements other than establishing a cause of action.
[42] With respect to establishing a cause of action, the motion judge noted that for this determination, the “plain and obvious” test for disclosing a cause of action from Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, applies. Under this standard, a claim will show a reasonable cause of action unless it has a radical defect. . Stolove v. Waypoint Centre for Mental Health Care
In Stolove v. Waypoint Centre for Mental Health Care (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from "the dismissal of their motion to certify a class proceeding alleging systemic negligence in the operation and oversight of the maximum security forensic psychiatric hospital in Penetanguishene, Ontario that provides care for involuntary patients".
Here the court (citing the motion judge below) generally considers the class action certification test [CPA s.5(1)]:[20] The motion judge noted that the test for certification is to be applied in a purposive and generous manner to give effect to the goals of class actions, including to provide access to justice for litigants, to encourage behaviour modification and to promote the efficient use of judicial resources. On a certification motion, the question is not whether the plaintiff’s claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding. That said, the certification test is meant to be a meaningful screening device, to ensure that the plaintiff’s claims can appropriately be prosecuted as a class proceeding.
[21] The motion judge stated that the plaintiff in a proposed class proceeding must show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading discloses a cause of action. The some-basis-in-fact standard sets a low evidentiary bar for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification 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.
In a class action related to contaminated drugs, the court considered the "some basis in fact" standard of proof applicable for finding the s.5(1)(b-e) certification elements as being met:(1) Some Basis in Fact
[104] The class representatives in a class action must show “some basis in fact” for each of the certification requirements set out in s. 5(1)(b) through (e) of the Class Proceedings Act, 1992: Hollick, at para. 25. While the “some basis in fact” test is a low evidentiary standard, and a court should not resolve conflicting facts and evidence, the court retains a gatekeeping function and certification will be denied if there is an insufficient evidentiary basis for the facts to establish the existence of common issues: Pro-Sys Consultants, at para. 103.
[105] The appellants state that no deference is owed to the motion judge’s assessment of the common issues or preferable procedure criterion because he engaged in an impermissible comparative evaluation of the evidence. The appellants contend the motion judge erred by not following the legal parameters of the “some basis in fact” principle when evaluating the common issues and preferable procedure criteria because he veered into weighing evidence and determining the merits of the claim rather than the lower threshold of looking for some plausible evidence to support proceeding by way of class action.
[106] I disagree. The motion judge clearly understood the task before him and correctly applied the “some basis in fact” principle, as he explained at para. 88 of his reasons:This conclusion about no basis in fact for a causal relationship between valsartan and cancer is not based on favouring the defendants’ experts over the plaintiffs’ and my conclusion is not meant to and does not resolve any battle of the experts. On the certification motion, both parties agreed that from an epidemiological perspective, an association – and in this case, the contemporary statistical evidence was modest in favour of a statistically significant relationship between valsartan and cancer – does not establish general causation. I repeat my legal conclusion is that at this moment in scientific time, there is no basis in fact for concluding that NDMA and NDEA cause cancer. [107] While the motion judge found no basis in fact for the proposition that NDMA and NDEA cause cancer, he did find some basis in fact for the appellants’ allegation that NDMA and NDEA cause an increased risk for developing cancer. This finding accorded with the actual claim. Indeed, as was noted in many places in the reasons below and not contested before this court, the appellants’ claim is not based on NDMA and NDEA having caused cancer, but instead causing an increased risk of cancer. Their proposed common issues make this plain at questions 2, 3, and 4 as follows:Did the Valsartan Drugs contain nitrosamine impurities above the acceptable intake limits for NDMA and/or NDEA, as defined by the FDA?
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