Conspiracy Class Actions: Evidence on the Motion for Certification

AuthorDavid W. Kent
Conspiracy Class Actions:
Ev id ence o n th e Mo ti on f or
Ce rti fi cation
David W. Kent*
Canadian class actions are growing up. For a while it seemed that any
lawyer with a representative plaintiff, a common issue, and a statement
of claim could invoke the mantra “it’s only procedural” and get a class
action certified.
However, if they ever existed, those days ended — or should have
ended — with the Supreme Court of Canada’s class action trilogy: Western
Canadian Shopping Centres Inc. v. Dutton,1 Hollick v. Toronto (City),2 and
Rumley v. British Columbia.3 In those cases, the court implicitly recognized
that a certification motion is a watershed in any proposed class action. In
particular, the court tightened up the standards for both the certification
criteria and the evidence to which they are applied.
This article discusses certain aspects of the post-Hollick requirements
for evidence on certification motions. It begins with a review of Hollick.
After a short detour, it focuses on the evidence appropriate to the issues of
commonality and preferable procedure on motions to certify class actions
variously described as conspiracy, cartel, or price-fixing cases.
* David Kent is a partner in the Toronto office of McMillan Binch Mendelsohn
LLP. He is a member of its litigation department and its competition/anti-
trust group and Chair of its class action group. He was defence counsel in
the polybutylene and travel agent cases discussed in this article (for Shell Oil
and Northwest Airlines, respectively). Simon Williams, an articling student at
McMillan Binch Mendelsohn, provided useful assistance in the preparation of
this article.
2 [2001] 3 S.C.R. 158 [Hollick].
The general requirement that there must be satisfactory evidence to
support a certification motion was confirmed by the Supreme Court of
Canada in Hollick. The court began by noting some basic principles.
For example, it recited Ontario’s rejection of the Ontario Law Reform
Commission’s proposal that class action legislation include a preliminary
merits test as part of the gate-keeping function of certification. Noting
that Ontario’s Class Proceedings Act, 19924 requires only that the statement
of claim disclose a cause of action, the court described the certification
motion as “decidedly not meant to be a test of the merits of the action.”5
Accordingly, the merits of the action are not relevant to certification.
Only the form of the action matters: “the certification stage focuses on the
form of the action. The question at the certification stage is not whether
the claim is likely to succeed, but whether the suit is appropriately pros-
ecuted as class action.”6
But even an inquiry into the form of an action requires evidence. The
Supreme Court of Canada described as “appropriate” the 1990 report
of the Ontario Attorney General’s Advisory Committee on Class Action
Reform, which suggested that the plaintiff must, and the defendant
might, deliver affidavits with the facts on which they intend to rely on
the motion.7 The court also referred favourably to lower court decisions
that variously expressed reluctance to rely only on solicitors’ affidavits,
allowed defendants to cross-examine individual plaintiffs to obtain evi-
dence, and required some satisfactory evidentiary basis for certification.8
The court concluded as follows:
I agree that the representative of the asserted class must show some
basis in fact to support the certification order … [T]hat is not to say that
there must be affidavits from members of the class or that there should
be any assessment of the merits of the claims of other class members.
However … the class representative will have to establish an evidentiary
basis for certification … In my view, the class representative must show
some basis in fact for each of the certification requirements set out in s.
4 S.O. 1992, c. 6 [CPA].
5 Hollick, above note 2 at para. 16. See also CPA, ibid. at ss. 5(1)(a) and 5(5).
6 Hollick, ibid. [emphasis in original].
7 Ibid. at para. 22.
8 Ibid. at paras. 23–24; see, for example, Caputo v. Imperial Tobacco Ltd. (1997),
34 O.R. (3d) 314 (Gen. Div.) and Taub v. Manufacturers Life Insurance Co.
(1998), 40 O.R. (3d) 379 (Gen. Div.).

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