In the recent decision of VLM v Dominey, 2022 ABQB 299 ("Dominey"), the Alberta Court of Queen's Bench ("ABQB") provided guidance on the type of evidence that may be admissible to meet the "some basis in fact" burden of proof the plaintiff bears to establish the criteria for certification, and refused to certify the action because a class proceeding was not the preferable procedure for the determination of allegations that putative class members were abused.
In Dominey, the plaintiff alleged that multiple defendants abused putative class members between 1985 to 1989 while they were detained in the Edmonton Youth Development Centre. In support of the plaintiff's application to certify the action, they lead evidence that one defendant had been noted in default, filed a paralegal's affidavit describing her interview of two prospective class members (which attached portions of two separate police reports), and filed a transcript from a preliminary inquiry in which a judge determined that a jury could return a guilty verdict against a defendant.
The Court admitted of all the evidence, save the police reports. However, the Court found that the default of one defendant had no evidentiary value as it was only an admission against the party noted in default. It did not equate to an admission made by, or evidence which could be used against, another defendant who had properly filed a statement of defence.
The Court admitted the transcripts from the Preliminary Inquiry because the inquiry process was sufficient to make them reliable for the purpose of certification: while they did not prove the truth of their contents, they proved that multiple witnesses testified under oath that they were abused, and therefore provided a basis in fact that could be used by the Plaintiff to attempt to establish the common issues.
The paralegal's affidavit describing an interview with two prospective class members was also admitted because the evidence was "not tendered to prove the truth of the contents of the interviews, but only to demonstrate what the witnesses told [the paralegal]," and thus provided some basis in fact to establish common issues.
However, the Court refused to consider the police reports as adequate evidence because they were filled with "primarily double and triple hearsay to such an extent that the probative value [was] so slight as to be virtually meaningless even on a certification application where the test is low".
Despite finding the existence of common issues on a some basis in fact standard, the Court refused certification on the basis that a class action was not the preferable procedure. Notwithstanding the potential shortcomings of individual actions, particularly for vulnerable claimants facing social and psychological barriers to participation in litigation, the Court held that the fundamental issues of whether each claimant was abused by the individual defendant and the circumstances in which the abuse took place could only be determined in individual trials.
The Court found that, for these individuals, allowing a class action to proceed would in fact only delay the ultimate resolution of their claims, including because questioning (discovery) of each claimant would occur more quickly in individual litigation, leading to potentially earlier resolution.
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