The Divisonal Court’s recent decision in Dine v Biomet Inc, 2016 ONSC 4039 will be of particular interest to members of the class action bar in Ontario, as it will have implications for evidence led on certification motions.


The defendants in Dine v Biomet sought leave to appeal Justice Belobaba’s decision certifying a proposed multiple model product liability class action. The case involved several models of metal-on-metal hip implants that were allegedly defectively manufactured and designed by the defendants.

In a decision released in June, leave to appeal was denied. Justice Then’s reasons focused largely on whether evidence of commonality touching on the merits of the claim ought to be considered at the certification stage of a proposed class action.

Positions of the Parties

The defendants argued that Justice Belobaba’s refusal to consider their evidence regarding the absence of commonality departed “radically” from the decisions of other class action judges. The defendants pointed to Justice Perell’s treatment of defence evidence in O’Brien v Bard Canada Inc, 2015 ONSC 2470 and in Vester v Boston Scientific, 2015 ONSC 7950, noting that “Justice Perell recognized that evidence relevant to the merits may also be relevant to the certification test and should be considered.”

Granting leave to appeal may have also shed light on a practical issue for the class action bar in Ontario. The defendants noted the following in their submissions:

“The difference in approaches taken by Justices Belobaba and Perell effectively means that the outcome of a certification motion may depend entirely on which of the two judges is assigned to the matter. On the one hand, Justice Perell compels disclosure of plaintiff medical records with a low threshold and considers defence evidence pertaining to different characteristics of devices in assessing commonality; on the other hand, Justice Belobaba refuses to grant disclosure of the plaintiffs medical records and refuses to consider defense evidence on commonality.”

Biomet also argued that Justice Belobaba failed to conduct a rigorous preferability analysis, alleging that His Honour’s decision focused only on the existence of common issues and failed to consider whether there was a need for individual inquiries. Though Justice Belobaba’s comments on preferability amounted to little more than a paragraph of his decision, Justice Then declined to grant leave to appeal on this basis, and stated that Justice Belobaba had reached a reasoned decision as “an experienced class action judge”.


The Court found that the decision was not in conflict with those of Justice Perell. In Biomet, the plaintiffs had succeeded in establishing some basis in fact for the existence of the proposed common issues, so Justice Belobaba was correct in declining to resolve conflicts in the evidence at the certification stage. The Court relied on the approach of the Supreme Court in Microsoft, Sun-Rype, and AIC as support for that principle.

In Bard and Vester, by contrast, the plaintiffs failed to adduce sufficient evidence of commonality. As a result, the evidence provided by the defence supplemented, rather than contradicted the evidence of the plaintiffs, and could be properly considered.


It remains to be seen how the terms supplementary and contradictory will play out in future certification decisions, but counsel on both sides of the aisle should take note of this development. In the meantime, this decision confirms that there is a significant onus on the plaintiff to put its best foot forward to establish some basis in fact at the certification stage.