The Space Between Rule 20 and 21: The Evidentiary Burden on Certification

• Author: Celeste Poltak
• Pages: 449-470

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Abstract: This paper attempts to develop the meaning of the

“some basis in fact” evidentiar y requirement on certif‌ication.

Since the Supreme Court of Canada articulated this concept

as the appropriate evidentiar y test in Hollick v. Toronto (City),

courts have struggled to provide a specif‌ic factual threshold to

satisfy this inquir y. The paper canva sses the jur isprudence to

thi s effect and at tempts to prov ide some ans wers to thi s elusive

evidentiar y component, particularly as it relates to each statu-

tory cr iteria of the certif‌icati on test, and whic h party bea rs this

evidentiar y burden in what circumstances. The courts’ treat-

men t of th e prec ari ous ba lanc e for p lain tif fs’ co unse l in s trik ing

a suff‌icient evidentiary basis, without tendering superf‌luous

merits ba sed evidence is also examined, a s is the treatment of

evidence to either support or refute the propriety of an aggre-

gate assessment of damages. Ultimately, the article concludes

that satisfying the malleable concept of “some basis in f act”

often lies someplace between Rule 20 and Rule 21: while t here

is no genuine issue for trial test on certif‌ication, something

more t han the pl ain and ob vious te st is clea rly requi red. Where

this line is drawn on certif‌ication continues to evolve, depend-

ent always on the specif‌ic fact s of each certif‌ication motion.

THE SPACE BETWEEN RULE 20

AND 21: THE EVIDENTIARY

BURDEN ON CERTIFICATION

Celeste Poltak

CCAR Vol 6 No 2.indb 449 23/12/2010 1:04:06 PM

CCAR Vol 6 No 2.indb 450 23/12/2010 1:04:06 PM