Identifying a Potential Class

The identifiable class requirement had become somewhat of an afterthought at the certification motion where the majority of attention was often spent on the common issues and preferable procedure parts of the test. This changed in 2013 with the release of Sun-Rype Products Ltd. v Archer Daniels Midland Company  (which we previously wrote about) when the Supreme Court of Canada held that the lack of evidence of a class of two or more persons is fatal to any certification motion. This conclusion has led courts to engage in a closer scrutiny of the evidentiary record in support of a sufficient class.

The Experience in British Columbia and Quebec

In Wakelam v Johnson & Johnson, the plaintiff sought to certify a class proceeding against certain manufacturers of children’s cough syrup. At the hearing, plaintiff’s counsel put forward an unfiled affidavit of a member of the law firm representing Ms. Wakelam as evidence of a class of two or more. The affidavit included the names of other interested people who supported the class proceeding and the type of cough syrup that each person purchased. The Supreme Court of British Columbia went on to certify the proceeding as a class action. The Court of Appeal of British Columbia held that this affidavit was sufficient to meet the evidentiary burden of showing a class of two or more. However, the Court of Appeal decertified the proceeding after striking out a significant portion of the statement of claim.

In Hébert v Kia Canada Inc (which we previously wrote about), the Superior Court of Quebec found that plaintiffs have to exercise diligence and investigate whether a proper class exists or risk losing at the certification stage. This ruling applied 1003 d) CCP which requires that a proposed class representative be in a position to adequately represent the class members.

The petitioner in Kia Canada could not name a single member of the potential class other than himself. The Court held that the petitioner must conduct an investigation in order to determine whether a proper class exists. If no such investigation takes place, the petitioner could not be said to effectively represent the members of the class.

Keatley Surveying Ltd. v Teranet Inc.

A 2014 decision on the Ontario Divisional Court remains an outlier with regard to the need for evidence of a class of two or more at the certification stage. In Keatley Surveying Ltd v Teranet Inc (which we previously wrote about), the Ontario Divisional Court ruled that it was an error of principle to require a plaintiff to adduce evidence that there was someone in addition to the plaintiff who wished to pursue a claim as a class proceeding. As Keatley is under appeal, its effect on this issue is uncertain.

Post-Keatley Jurisprudence

Despite the decision in Keatley, at least one certification motion has been rejected for a lack of evidence of a class of two or more persons. In Ladas v Apple Inc, the British Columbia Supreme Court refused to certify a class proceeding which alleged that Apple devices using a particular operating system recorded and stored unencrypted location data in breach of the plaintiff’s right of privacy and which was alleged to constitute a deceptive act under the BPA. The Court declined to certify the proceeding for a number of reasons. One reason was that the plaintiff’s evidence did not disclose an identifiable class of two or more persons. The only evidence before the Court was an affidavit of an assistant at the law firm representing the plaintiff. The affidavit listed 17 potential class members who contacted the firm and their respective retainer agreements.

The Court held that the affidavit was not the same quality as that in Wakelam because it did not have any information to demonstrate that the potential class members could in fact be class members.

Unanswered Questions

The decisions in Kia Canada, Wakelam and Ladas offer limited guidance regarding the quality of evidence required to court of the existence of a class of two or more. In Ladas, the Court commented that the assistant who swore the affidavit had not spoken to any of the potential class members. In Wakelam, the affidavit was sworn by a lawyer that provided some details about the why the proposed class members would be included in the class definition.

Another issue arising from an affidavit sworn by a lawyer is a risk that the lawyer will be cross-examined and be unable to act as counsel or be placed in a potential conflict with his or her client on the certification motion.

Conclusions

In the wake of the increased attention on the issue of evidence in a certification motion, plaintiffs must carefully consider the type of evidence adduced and who the affiant will be to demonstrate a class of two or more persons exist. Plaintiffs can no longer rely on the notice process or information in the possession of the defendants to satisfy this requirement. This issue represents an important turning point in affirming the certification motion’s gate-keeping function in class action proceedings.