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Class Action (Ont) - Certification - Common Claims and Defences [CPA 5(1)(c)]. Lilleyman v. Bumble Bee Foods LLC
In Lilleyman v. Bumble Bee Foods LLC (Ont CA, 2024) the Ontario Court of Appeal dismissed a plaintiff's 'price-fixing conspiracy' class action certification appeal.
Here the appeal court considers the CPA s.5(1)(c) 'common issues' certification element, approving of the trial judge's treatment:[18] The motion judge noted that the test for certification is to be applied in a purposive and generous manner to give effect to the goals of class actions, including to provide access to justice for litigants, to encourage behaviour modification and to promote the efficient use of judicial resources. That said, the certification test is meant to be a meaningful screening device, to ensure that the plaintiff’s claims can appropriately be prosecuted as a class proceeding.
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(3) The some-basis-in-fact criterion for the proposed common issues
[28] The motion judge explained that one of the key requirements on a certification motion is that the claims of the class members raise common issues, as required by s. 5(1)(c) of the CPA. In particular, the plaintiff must show that there is “some basis in fact” that the proposed common issues exist, and that the issues extend across the members of the class.
[29] The motion judge noted that the some-basis-in-fact standard does not require evidence on a balance of probabilities, nor should the court attempt to resolve conflicts in the evidence at the certification stage. The certification analysis does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action. Rather, the difficult task on a certification motion is to “walk a tight rope of determining that there is some basis in fact for the certification criteria while not making any determination of the merits of the proposed representative plaintiff’s case.”
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[33] The motion judge also found that the appellant had failed to show that there was a common issue regarding the class members’ damages. In particular, the appellant had failed to provide a methodology that was sufficiently credible or plausible to establish loss on a class-wide basis.
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[71] The motion judge was well aware that requiring some basis in the evidence that the proposed common issues actually exist is quite different from determining the merits of the proposed action. He described this requirement as a “low evidentiary standard” that merely required “some evidentiary foundation to conclude that the alleged conspiracy with attendant harm to the Class Members could or might have occurred in Canada.” But the some-basis-in-fact standard did not require evidence on a balance of probabilities and did not require the court to resolve conflicting facts and evidence at the certification stage. This reflected the fact that at the certification stage, the court is ill-equipped to resolve conflicts in the evidence or to engage in an assessment of the viability or strength of the action.
[72] The fact that a plaintiff on a certification motion must provide some basis in the evidence that an alleged conspiracy could or might have occurred is a minimal but necessary requirement. As a matter of logic and common sense, if there is no basis in fact to suppose that a conspiracy with attendant harm actually occurred, it necessarily follows that there is no basis to suppose that such a nonexistent conspiracy could have caused harm across members of the proposed class. Justice de Montigny made this point in Jensen, at para. 77: “I fail to see how it can seriously be argued that a judge could determine whether the claims of the class members raise common questions of fact or law without first deciding whether there is some basis in fact for the very existence of each common issue.”
[73] Whether the necessary analysis is described as involving one or two steps is beside the point. A key rationale and purpose of the certification process is to root out frivolous and unfounded claims. If a claim of conspiracy with no factual underpinning whatsoever could proceed as a class action merely by alleging that the purported conspiracy caused harm to a group of individuals, virtually any such conspiracy claim would have to be certified.
[74] Requiring a plaintiff to satisfy this minimal evidentiary standard is entirely different from requiring proof of the claim, whether on a balance of probabilities or otherwise. The standard requires some basis in fact, not proof of fact. It does not involve weighing the merits of the claim or the resolution of conflicts in the evidence, but merely asks whether there is some minimal evidence in support of it. Certification of a claim that is unable to satisfy such a minimal evidentiary standard would undermine judicial economy, and in the process indirectly impair access to justice for other arguably meritorious claims.
[75] Contrary to the appellant’s submissions, this is not a novel requirement nor is it a departure from existing jurisprudence of Ontario courts on this issue. As Miller J.A. recently observed in Teva, at para. 104, “[w]hile the ’some basis in fact’ test is a low evidentiary standard, and a court should not resolve conflicting facts and evidence, the court retains a gatekeeping function and certification will be denied if there is an insufficient evidentiary basis for the facts to establish the existence of common issues.” Thus, in Teva this court upheld a dismissal of a certification motion on the grounds, inter alia, that there was no basis in the evidence in support of certain of the claims made by the plaintiffs. A similar approach is routinely applied in the review of certification decisions by the Divisional Court, as demonstrated by recent decisions such as: Simpson v. Facebook, 2022 ONSC 1284, 160 O.R. 3(d) 629 (Div. Ct.), at paras. 25-26; Kuiper v. Cook, 2020 ONSC 128, 149 O.R. (3d) 521 (Div. Ct.), at paras. 27-33; Frayce v. BMO, 2024 ONSC 533 (Div. Ct.), at paras. 12-16 & 21-25.
[76] Nor is this approach inconsistent with the above-noted comments by Rothstein J. in Pro-Sys Consultants to the effect that on a certification motion “evidence that the acts alleged actually occurred is not required.” As de Montigny J.A. pointed out in Jensen, at para. 83, Rothstein J.’s comments were made in response to the argument that the plaintiff was required to prove that it had met the some-basis-in-fact standard on a balance of probabilities. Thus, when read in context, Rothstein J.’s comments merely reaffirmed that the some-basis-in-fact standard does not equate with a balance of probabilities test, as opposed to suggesting that a conspiracy claim lacking any evidentiary foundation should nevertheless be certified as a class proceeding.
[77] I therefore conclude that the motion judge did not err in requiring the appellant to provide some minimal evidence in support of the existence of the alleged conspiracy as part of his consideration of whether the plaintiff had satisfied the some-basis-in-fact criterion.
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[79] The motion judge properly applied the some-basis-in-fact standard in making these findings and they are entitled to deference. The appellant has identified no palpable and overriding error in his findings, but merely asks this court to substitute our own analysis of the evidence for that of the motion judge. I would therefore reject this ground of appeal. . Palmer v. Teva Canada Limited
In Palmer v. Teva Canada Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against a lower court dismissal of a class action certification motion.
In a class action for contaminated drugs, the court considered the certification issue of 'commonality' [CPA 5(1)(c)]:[103] Substantial deference is owed to the motion judge’s application of the test for certification and his determination of the common issues and preferability. On such questions, appellate court intervention should be restricted to matters of general principle: Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, at para. 39, leave to appeal refused, [2018] S.C.C.A. No. 489.
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2) Common Issues Criterion
[110] An issue will be common “only where its resolution is necessary to the resolution of each class member’s claim.” In other words, it “will not be ‘common’ in the requisite sense unless the issue is a ‘substantial…ingredient’ of each of the class members’ claims”: Hollick, at para. 18.
[111] For a claim to be certified, there must be a “methodology” through which the common issue may plausibly be proven at trial. As Rothstein J. explained in Pro‑Sys Consultants, at para. 118: “This means that the methodology must offer a realistic prospect of establishing loss on a class-wide basis so that, if the [head of damage] is eventually established at the trial of the common issues, there is a means by which to demonstrate that it is common to the class.”
[112] The appellants contend that the motion judge erred by failing to consider whether the immediate psychological distress experienced by some class members upon the revelation of the contamination met the definition of a common issue.
[113] The motion judge committed no such error. Although he dismissed the claim for psychological distress for failing to disclose a viable cause of action, he went on to consider whether the damages for psychological harm would be certifiable as a common issue. He concluded that there was not a common issue because the plaintiffs had failed to show some basis in fact to meet this criterion.
[114] Given the nature of the claims advanced here, it is apparent that the assessment of psychological damages requires proof of the harm suffered by the individual class members because the claims are inherently individual in nature and idiosyncratic: Healey, at para. 71.
[115] Claims for psychological harm are often individual: a claimant must prove mental distress that is serious, prolonged, and rises above the ordinary annoyances, anxieties, and fears of life. At most, the motion judge found that the evidence of the psychological effect of the recall caused a minority of the class to have suffered the upsets and anxieties that would be compensable under tort law. Accordingly, as the motion judge found, “the hard work remains for individual issues trials and the common issues trial is of marginal utility.” I see no error in this conclusion.
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[121] Having reviewed this evidence, I see no error in the motion judge’s conclusion that the plaintiffs failed to meet the “some basis in fact” threshold to show commonality. Even had I not concluded there was no viable cause of action in relation to psychological harm, the plaintiffs’ claim for psychological harm damages is not certifiable because it does not meet the common issue criteria. . David v. Loblaw Companies Limited
In David v. Loblaw Companies Limited (Div Court, 2024) the Divisional Court considered (and dismissed) an appeal of a case conference order that 'settled' terms of a larger class action certification order, here grounded in Competition Act law.
Here, the lower court (upheld on appeal) walks-through the CPA s.5(1)(c) ['claims or defences of the class members raise common issues'] element:[20] The applicable principles for assessing whether the claims of the class members raised common issues as required by s. 5(1)(c) of the CPA, were outlined in Hodge v. Neinstein, 2017 ONCA 494, 136 OR (3d) 81, at paras. 111-112, by Hoy A.C.J.O.:111 The underlying commonality question is whether allowing a proceeding to continue as a class proceeding will avoid duplication of fact-finding or legal analysis: Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534 (S.C.C.), [2000] S.C.J. No. 63, 2001 SCC 46, at para. 39; Pro-Sys, at para. 108.
112 The court went on, at para. 108 of Pro-Sys, to list the balance of the instructions found at paras. 39-40 of Dutton as to how to approach the common issues inquiry:
(1) The commonality question should be approached purposively.
(2) An issue will be “common” only where its resolution is necessary to the resolution of each class member's claim.
(3) It is not essential that the class members be identically situated vis-à-vis the opposing party.
(4) It not necessary that common issues predominate over non-common issues. However, the class members' claims must share a substantial common ingredient to justify a class action. The court will examine the significance of the common issues in relation to individual issues.
(5) Success for one class member must mean success for all. All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent.
113 At the certification stage, the factual evidence goes only to establishing whether the questions are common to all the class members: Pro-Sys, at para. 110. While there must be “some basis in fact” that the issues are common, the test “does not require that the court resolve conflicting facts and evidence at the certification stage”, which the court is ill equipped to do at that stage: Pro-Sys, at para. 102.
114 Even a significant level of difference among the class members does not preclude a finding of commonality. If material differences do emerge, the court can deal with them at that time: Pro-Sys, at para. 112; Dutton, at para. 54.
115 An appellate court owes considerable deference to a certification judge’s commonality analysis, and “should restrict its intervention to matters of general principle”: Markson v. MBNA Canada Bank (2007), 85 O.R. (3d) 321 (Ont. C.A.), [2007] O.J. No. 1684, 2007 ONCA 334, at para. 33. [21] In addressing whether the claims of the proposed class of plaintiffs raise common issues under s. 5(1)(c) of the CPA, the motions judge stated, at paras. 69-71:69 In Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 (CanLII), [2001] 2 SCR 534, at para 39, the Supreme Court explained that in a certification motion, “[t]he underlying question is whether allowing the suit to proceed as a [class proceeding] will avoid duplication of fact-finding or legal analysis”. From this foundation point, it follows that while class members need not all be situated identically vis-à-vis the Defendants, a “common issue” is one which “is necessary to the resolution of each class member’s claim” Ibid.
70 Further, the Court must be satisfied that the evidence tendered in support of the Plaintiffs' claims demonstrates that there is at least some basis in fact for the proposed common issues: Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 SCR 158, at para 25. This assessment entails something more than "a bare assertion in the pleadings" that the common issues have evidentiary support: Fulawka v. Bank of Nova Scotia, 2012 ONCA 443 at para. 79. As the Divisional Court has explained: "some factual basis - in the form of admissible evidence - to support the allegation[s]", without which, the "gatekeeping function of the court would be effectively neutered": Williams v. Canon Canada Inc., 2012 ONSC 3692, at para 23.
71 Thus, section 5(1)(c) requires a two-step inquiry as to whether proposed common issues actually exist and, if so, can be answered in common across the Class. This is not a particularly high standard, but it is one that nevertheless requires the Court to move beyond mere “symbolic scrutiny”: Lin v. Airbnb, Inc., 2019 FC 1563, at para 33. As my colleague Perell J. stated in Kuiper v. Cook (Canada) Inc., 2018 ONSC 6487, at para 134, rev’d in part on other grounds, 2018 ONSC 6487 (Div Ct), “while the standard is low, it is not subterranean.” It is the Defendants’ primary contention in this certification motion that the evidentiary record does not meet the requisite standard.
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