Two Steps Forward, one Step Back: 'Some Basis in Fact' and the Certification of Common Issues

• Author: Jacob Medvedev, Randy C Sutton & Linda Fuerst
• Position: Articling student at the Toronto office of Norton Rose Fulbright Canada LLP/Partner in the Toronto and Vancouver offices of Norton Rose Fulbright Canada LLP. He practises in the area of class proceedings/Senior partner at Norton Rose Fulbright Canada LLP in Toronto and Chair of the Toronto litigation and disputes group
• Pages: 33-60

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Two Steps Forward, One Step Back: “Some Basis in

Fact” and the Certif‌ication of Common Issues

Jacob Medvedev, Randy C Sutton, Linda Fuerst

AbstrAct: In this paper, the authors review the state of the law regarding

plaintif‌fs’ evidentiary burden at certif‌ication. Specif‌ically, the authors can-

vass the jurisprudence on the “some basis in fact” standard that plaintif‌fs

are required to satisfy in respect of the common issue criterion under

class proceedings legislation. Originally pronounced by the Supreme

Court of Canada in Hollick v Toronto (City), the “some basis in fact” test

has become the source of considerable debate. Two dominant perspec-

tives have emerged over time. According to the f‌irst, the “some basis in

fact” standard is a one-stage analysis that requires examination of only

the class-wide nature of the proposed issues. According to the second, the

“some basis in fact” inquiry involves a two-step analysis requiring plaintif‌fs

to furnish evidence in support of the (1) existence of the alleged common

issues and (2) the proposition that the issues can be resolved on a class-

wide basis.

By tracing the evolution of the “some basis in fact” test and analyzing

comparative case law, it appears that the law is now settled: the two-step

test governs the assessment of common issues at certif‌ication.