Evidence Of Online Complaints Of Limited Utility On Motion For Certification

• Published date: 07 July 2021
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Glenn Zakaib and John Hunter

In Carter v. Ford Motor Company of Canada¹ (Carter), the Ontario Superior Court of Justice struck portions of a lawyer's affidavit that summarized and attached as exhibits various unverified online complaints. The complaints had been tendered to help demonstrate some basis in fact for an alleged defect. In its decision, the court emphasized the limited utility of online complaints to demonstrate some basis in fact, and the narrow scope of documentary evidence that may be submitted through a lawyer's affidavit.

Evidence submitted for "some basis in fact"

In Carter, the plaintiffs alleged that some of the defendants' vehicles contained a defective water pump system and that the defendants were aware of the defect. In support of its motion for certification, and to demonstrate some basis in fact that the defendants were aware of the defect, the plaintiffs submitted a lawyer's affidavit that attached as exhibits anonymous complaints from the website of the U.S. National Highway Traffic Safety...