Bring Some Evidence To Support The Claim Or Do Not Pass Go

Published date15 July 2021
Subject MatterLitigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
Law FirmMcCarthy Tétrault LLP
AuthorCanadian Class Actions Monitor, Kara L. Smyth, Cassidy Bishop and Colleen Bonnyman

In Atlantic Lottery Corporation Inc. v Babstock, 2020 SCC 19, the Supreme Court of Canada delivered a strong message to would-be representative plaintiffs and courts faced with the task of considering certification: the claim must be viable, and certification must be a "proportionate procedur[e] for adjudication" or it should not be certified (you can read our analysis of Atlantic Lottery, here).

One year later, it is clear that the message has been received. In this article, we discuss two recent cases where the Court weeded out hopeless claims and refused to certify due to a lack of supporting evidence: Spring v Goodyear Canada Inc, 2021 ABCA 182, and Maginnis and Magnaye v FCA Canada et al, 2021 ONSC 3897.

Spring v Goodyear Canada Inc.

Goodyear concerned an alleged systemic manufacturing defect in tires. The proposed representative plaintiff alleged that he was driving his vehicle on a highway when one of his tires from Goodyear failed and he was injured. The plaintiff received a recall notice for his tires but was told that his tires were manufactured prior to the period covered by the specific recall. His accident and injuries occurred three days later.

The action was certified by the case management judge. The central issue on appeal was whether there was "some basis in fact" to support that common issues and whether they could be resolved through a class proceeding.

The only evidence that the plaintiff presented at the certification hearing of a defect in the tires was the recall notice. He did not produce any evidence that pointed to the cause of the tread separation of his tires or any tires covered by Goodyear's recall, or whether any systemic manufacturing defect lead to his accident. As a result, there was no evidence of a common defect - any number of factors could have caused the failure of his tires versus any other tires subject to the recall. While the plaintiff pointed to evidence of "clusters" of returns of similar tires to Goodyear, this did not assist as there was no evidence to support an inference that the clusters and the tires affected by the recall suffered from the same defect.

Furthermore, the Court soundly rejected the Plaintiff's claim that Goodyear had deliberately and intentionally selected an inappropriate recall notice, as being utterly devoid of an evidentiary basis. The Court stated:

[40] The case law is clear that the evidentiary threshold for certification is very low, but as observed in Simpson v Facebook Inc, 2021...

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