Two Steps Forward, One Step Back: “Some Basis in Fact” and the Certification of Common Issues

Abstract: In this paper, the authors review the state of the law regarding plaintiffs’ evidentiary burden at certification. Specifically, the authors canvass 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 perspectives 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.