Setting Standards: Evidence, Proof and the Certification Motion

Abstract

In the ubiquitous Hollick decision, the Supreme Court of Canada offered what has become the definitive articulation of the evidentiary burden to be met for an action to be certified as a class proceeding: The plaintiff must show, “some basis in fact,” for each of the certification criteria, other than the criterion that the pleadings disclose a cause of action. Several 2010 certification decisions from three different provinces illustrate the continuing judicial tinkering with the standard of proof to be met on certification. In this brief article, I analyze these three recent decisions, reconcile them with established principles of the law of evidence, and highlight the rapidly widening difference in approaches between Canadian and U.S. certification jurisprudence, including the pending Wal-Mart decision.

Keywords: class actions, certification, evidence, standard of proof

JEL Classification: K10, K41