Kicking The Certification Can Down The Road: The Evolution Of Judicial Discretion In Class Action Litigation – A Western Perspective

In certifying a class, the certification judge must proceed in a "flexible and liberal manner, seeking a balance [of considerations] of efficiency and fairness".1 Despite this purposive approach, however, the certification process requires the court to undertake an analysis of whether the proposed class action accords with the purpose of class action legislation through a five-part statutory test. In conducting this analysis, the court will consider whether:

the pleadings disclose a cause of action; there is an identifiable class of two or more persons; the claims or defences of the various class members raise common issues; a class proceeding is the preferable procedure for the fair and efficient resolution of common issues; and there is a suitable representative plaintiff.2 Of these five criteria, the two that tend to receive the most judicial scrutiny are the existence of a cause of action and the element of commonality.3 While the various class criteria are inherently interrelated,4 commonality and cause of action are uniquely linked. In fact, commonality may be grounded on the mere existence of a common cause of action.5 More generally, and to the extent that a common issue exists, the cause of action sets its parameters; to the extent that a cause of action can proceed as a class action, commonality is a necessity.6 In tandem, these two elements distinguish class-based litigation from the slew of individual actions that would otherwise inundate the court. Further highlighting the interrelatedness of the certification criteria is the fact that the existence of common issues will frequently inform the assessment of whether a class action is the preferable means of resolving a dispute.

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