We have previously commented on the relatively low
evidentiary threshold at the certification stage of class actions
in Canada. The Federal Court of Appeal's decision in Condon v Canada, a privacy class action,
continues this theme as a recent example of Canadian courts'
liberal and purposive approach to class action certification.
Background: The Certification Requirement – A Reasonable
Cause of Action
Among the criteria required to certify a class action is that
the pleadings must disclose a reasonable cause of action. While a
proposed plaintiff must provide sufficient evidence to show some
factual basis for each of the other certification requirements, the
same is not required to prove the existence of a cause of action.
Rather, a pleading will be found to disclose a cause of action
unless it is plain and obvious that no such claim exists.
Federal Court Partially Certifies Class Action
In July 2014, the Federal Court certified in part a class
proceeding for damages arising out of the loss by the Ministry of
Human Resources and Skills Development Canada of a hard drive
containing personal information of 583,000 student loan recipients.
Our post regarding the certification decision can be found here.
At the certification stage, the class action was allowed to
proceed based on breach of contract and the tort of intrusion upon
seclusion. The certification judge denied certification of the
claims for breach of confidence and negligence, finding, based on a
"summary review of the evidence", that the plaintiff had
not suffered any compensable damages, and therefore negligence and
breach of confidence (both of which have damages as an essential
element) could not be certified.
Appeal Allowed: Reasonable Cause of Action Not Determined By
Evaluating Evidence on Certification Motion
Allowing the Appeal, the Federal Court of Appeal referred the
matter back to the Federal Court to determine the common issues in
the class action in relation to the claims for negligence and
breach of confidence. The Federal Court of Appeal held that the
certification judge erred in evaluating the affidavit evidence
filed by the parties to determine the merits of the claims for
negligence and breach of confidence. The Court reinforced that at
the certification stage of class actions, the determination of
whether pleadings disclose a reasonable cause of action is
based on an assumption that the facts as pleaded are true, not on a
review of evidence adduced in support of the motion.
Condon serves as a reminder of the proper purpose of
evidence on certification motions, and reaffirms that the
certification stage is not intended to be a test of the merits of a
proposed class action.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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