Conspiracy class actions: evidence on the motion for certification
| Author | David W. Kent |
| Profession | Partner in the Toronto office of McMillan Binch Mendelsohn LLP |
| Pages | 245-260 |
CONSPIRACY
CLASS
ACTIONS
EVIDENCE
ON THE
MOTION
FOR
CERTIFICATION
David
W.
Kent*
A.
INTRODUCTION
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.
Button,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-HoHicfe
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.
1
534.
2
[Hollick].
3
184.
245
246
LITIGATING
CONSPIRACY:
AN
ANALYSIS
OF
COMPETITION
CLASS
ACTIONS
B.
THE
LESSONS
IN
HOLLICK
The
general requirement that there must
be
satisfactory evidence
to
support
a
certification motion
was
confirmed
by the
Supreme Court
of
Canada
in
Rollick.
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(l)(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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