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...