Canadian class action defence lawyers may have reacted with a
hint of envy towards their American counterparts when the United
States Supreme Court released the decision in Wal-Mart Stores, Inc.
v. Dukes et al on June 20, 2011.
The decision overturned the granting of certification by the
lower courts in the context of a claim under the Civil Rights Act
of 1964. Current and former employees of Wal-Mart had sought
certification on behalf of 1.5 million female employees because of
alleged discrimination against women.
One of the key issues in the case was whether the petitioner
satisfied Rule 23 (a)(2) of the United States Federal Rules of
Civil Procedure, namely that there were questions of fact or law
common to the class.
Significantly, the plaintiffs did not allege thatWal-Mart had an
express corporate policy against the advancement of women. Rather
they claimed that local managers' discretion over pay and
promotion was exercised disproportionately in favour of men, the
theory being that a strong and uniform "corporate
culture" permitted bias to infect the discretionary
decision-making of each Wal-Mart manager at the local store or
The point of interest to Canadian companies and practitioners is
the comparative degree of vigour exercised by the United States
Supreme Court in analyzing the claim for certification.
The majority cautioned that the requirement for a common
question of fact or law is easy to misread since any competently
crafted class complaint or statement of claim, literally read,
necessarily raises common "questions." The key to
determining whether a question of fact or law is truly common to
the class, the Court explained, is whether the same proof will be
used to answer that question as to each class member such that
prosecution of the plaintiffs' claims "will produce a
common answer to the crucial question."
Rule 23 does not set forth a mere pleading standard. Instead, a
party seeking certification must affirmatively prove each element
of the Rule. Further, the Court emphasized that a trial court must
subject the proof offered in support of class certification to a
"rigorous analysis," including weighing disputed expert
testimony, even if that analysis overlaps with the merits of the
plaintiffs' underlying claims. The Court then held that the
plaintiffs failed to prove under Rule 23(a)(2) that there were, in
fact, common questions of law or fact.
By contrast, counsel from the United States or defendant
corporations from the United States are often surprised when they
are involved in class action certification hearings in Canada. The
class action legislation of Provinces in Canada requires the court
to find that there are common issues of law or fact and to find the
issue is a substantial ingredient of each class member's claim.
However, this is where the analyses of the courts diverge.
The evidential burden on an applicant for class certification in
Canadian proceedings is lower than the standard espoused in the
Wal-Mart decision. This is particularly true in Québec where
the rights of defendants to adduce evidence to counter
certification are more restricted than in the rest of Canada. The
Supreme Court of Canada has described the burden on an applicant as
showing, "some basis in fact to support the certification
order." The standard has been interpreted as a lower threshold
than that applied in the Wal-Mart decision.
The difference can result in asymmetrical management of
cross-border disputes in the United States and Canada. The number
of potential claimants and the financial exposure in the United
States will dwarf Canadian exposures, but in several areas of
substantive law, there is a greater chance of class certification
This raises strategic and other issues on the choice of venue
for litigation and the defence of the claim, including issues such
as the jury culture in the United States, the more common practice
of judge alone trials in Canada, choice of law, as well as
considerations of issue estoppel and enforcement of settlements and
judgments in the companion jurisdiction.
These are complex decisions, but if there is going to be some
convergence of legal principles, Canadian class action defence
lawyers would welcome movement towards the United States'
burden of proof on class action petitioners.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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