In a class action certification decision released on December 18, 2015, Justice Belobaba of the Ontario Superior Court of Justice addressed what he called “the most contentious issue in the certification of class actions, and especially product liability class actions” - the issue of commonality, and specifically the level of merits-based evidence which is appropriate to determine the issue for the purpose of class certification.1

What degree of evidence on the merits of the case is required to determine commonality for certification? This question has been hotly contested in product liability class actions. In the opening paragraphs of Dine v. Biomet, Justice Belobaba succinctly described his view of the differing approaches taken by plaintiff and defence counsel, stating:

Class counsel generally understands that only a minimal amount of evidence is needed to satisfy the commonality requirement. Defence counsel generally does not and presents far too much merit-based evidence that has no place at certification and is better left for trial.

This view clearly set the tone for his decision granting certification of the class action.

Background to the Case

Biomet is a class action arising from three separate large head metal-on-metal hip implant products manufactured by the Biomet defendants which are alleged to have been inherently unsafe, harmful to adjacent tissue and the cause of higher than average levels of revision surgeries. We previously covered a decision in this case regarding pre-certification disclosure of medical records.

The only aspects of the certification test challenged by the defendants were commonality and whether a class proceeding was the preferable procedure. Justice Belobaba was dismissive of the defendants’ arguments that a class action was not preferable, finding that the common issues presented were no different from other certified medical product class actions in Ontario and that their adjudication would meaningfully advance the issues regardless of the ultimate outcome of the case. As such, the focus of his decision was commonality.

A Low Bar to Certification: Commonality and the “Some Basis In Fact” Test

In addressing commonality, Justice Belobaba broke down the “some basis in fact” test into two parts generally applicable to product liability class actions: (a) whether there is some evidence supporting the existence of a defect, and (b) whether there is some evidence of class-wide commonality. Stressing the low evidentiary bar to certification, Justice Belobaba found that the plaintiff had discharged its duty to show some evidence of both a defect and commonality.

Although Justice Belobaba noted the defendants had filed “extensive” and “compelling” evidence rebutting the plaintiffs position on the merits of the case, he found this evidence to be “irrelevant at the certification stage of the proceeding” and stated that any adjudication on the merits should be reserved for trial or summary judgment.

Aside from one common issue asking whether the defendants should be compelled to establish a monitoring regime, which was not certified, and a suggested amendment to clarify the common issue with respect to punitive damages, all common issues were certified.

Key Take-Away Principle

Justice Belobaba’s decision raises an ever-present and troubling issue for defence counsel in product liability cases. If the evidentiary bar to certification is really so low and if extensive, and compelling evidence led to rebut the plaintiff’s evidence will be cast aside as “irrelevant”, is there any value in vigorously contesting motions for certification at all? Justice Belobaba’s decision seems to suggest not. However, contrasted with the decision released one day earlier by Justice Perrell in Vester v. Boston Scientific Ltd. (also summarized above in this newsletter), it appears that a degree of merits-based evidence by the defence may be capable of defeating the “some basis in fact” test for commonality after all. This will most certainly continue to be a hotly contested issue in future cases.

Read the full decision here.