The commonality test in class action certification: the battleground of screening merits and fair process

• Author: Mohsen Seddigh
• Position: Partner at Sotos Class Actions in Toronto and Vancouver
• Pages: 39-78

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The Commonality Test in Class Action Certification:

The Battleground of Screening Merits and Fair Process

Mohsen Seddigh

: The class action certification test requires “claims [that] . . .

raise common issues.” The common law jurisdictions in Canada have

become divided as to the evidentiary basis in fact required to establish

that requirement. Some have recently held that the plaintiff must adduce

some basis in fact that: (a) the proposed issues are common to the class;

and (b) the proposed issues exist. Others have required evidence of com-

monality only, having identified incongruencies in principle in requir-

ing evidence of the existence of issues proposed to be common to the

class. This article takes a closer look at what it means to superimpose

an evidentiary burden of existence on the commonality inquiry. The

article reviews a sample of certified common issues, concluding that the

existence inquiry is at its core a screening of the substance and merits of

the common elements of the claim. In some cases, that merits screen-

ing is procedurally harmless. However, that screening often becomes

incompatible with other certification caselaw that has adopted a rigid

exclusionary approach to pre-certification discovery and an exacting test

of evidence admissibility. The end result, when these lines of authority

operate together, is a compromise in fair process: a process that demands

evidence, and only evidence that would be admissible at trial, that it

denies discovery of, even in cases where the evidence is solely in the

possession and control of the defendant. This article calls for a holistic,

rather than a piecemeal, approach to these elements of certification so

that merits screenings — if they are desirable and permitted — are con-

ducted openly and with fair and proportionate procedural safeguards.

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THE COMMONALITY TEST IN

CLASS ACTION CERTIFICATION:

THE BATTLEGROUND OF SCREENING

MERITS AND FAIR PROCESS

Mohsen Seddigh*

A. INTRODUCTION

Commonality holds pivotal significance in determining whether a law-

suit can proceed as a class action. Its purpose is to assess whether the

claims of a proposed class share sucient common issues to justify their

prosecution through a single action.

Canadian jurisprudence initially conceived of commonality as a single-

inquiry test that followed the language of the statutory certification test:

are the proposed common issues common to the class? In recent years,

however, some common law courts have adopted a two-part commonal-

ity framework, which asks: (a) whether the proposed common issues are

common to the class; and (b) whether the proposed common issues exist.

This article posits that the part of the two-part commonality test

requiring evidence that the common issues exist is in fact a requirement

to adduce evidence in support of the cause of action or claim at certifica-

tion. It is therefore a test preliminarily screening the merits of the action

rather than the class action form or procedure.

This article does not argue that the screening of the merits at cer-

tification is inherently good or bad. However, the screening of merits

(whether openly or in disguise) has implications for the fairness of the

judicial process. It also involves certain policy considerations that would

*Mohsen Seddigh is a partner at Sotos Class Actions in Toronto and Vancouver. The

author would like to thank David Sterns, Luca Bellisario (student), and Denna

Pourmonazah Jalili for their comments and assistance with this article.