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

This paper attempts to develop the meaning of the “some basis in fact” evidentiary requirement on certification. Since the Supreme Court of Canada articulated this concept as the appropriate evidentiary test in Hollick v. Toronto (City), courts have struggled to provide a specific factual threshold to satisfy this inquiry. The paper canvasses the jurisprudence to this effect and attempts to provide some answers to this elusive evidentiary component, particularly as it relates to each statutory criteria of the certification test, and which party bears this evidentiary burden in what circumstances. The courts’ treatment of the precarious balance for plaintiffs’ counsel in striking a sufficient evidentiary basis, without tendering superfluous merits based evidence is also examined, as is the treatment of evidence to either support or refute the propriety of an aggregate assessment of damages. Ultimately, the article concludes that satisfying the malleable concept of “some basis in fact” often lies someplace between Rule 20 and Rule 21: while there is no genuine issue for trial test on certification, something more than the plain and obvious test is clearly required. Where this line is drawn on certification continues to evolve, dependent always on the specific facts of each certification motion.