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

AuthorJacob Medvedev, Randy C Sutton & Linda Fuerst
PositionArticling 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
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.

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