More Than 'Symbolic Scrutiny' Federal Court Of Appeal Clarifies Evidentiary Burden And Denies Certification

• Jurisdiction: Canada
• Author: Canadian Class Actions Monitor, Nikiforos Iatrou, Casey Halladay, Akiva Stern and Olivia Trojko
• Law Firm: McCarthy Tétrault LLP
• Published date: 19 May 2023

Canadian courts are increasingly tilting against simply accepting a plaintiff's pleading at face value at certification, instead ensuring that plaintiffs' allegations are a fair representation of the underlying evidence they rely on. Courts have historically walked a delicate balance to ensure they refrain from a full merits-analysis (prohibited at certification), while still ensuring claims have at least some minimal evidentiary basis to support them going forward. On April 28, 2023, the Federal Court of Appeal in Jensen v. Samsung Electronics Co. Ltd. ¹ ("Jensen") clarified this burden and put to rest the plaintiffs' frequent refrain that courts should not engage in a merits-based review of the evidence at this procedural juncture. As the Court clarified, reviewing the evidence is not the same as engaging in a merits-based review.

The appeal stems from the underlying Federal Court decision of Justice Gascon (the "Motion Judge"), summarized here, and follows its Québec counterpart Hazan c. Micron Technology Inc. ("Hazan"). There, the Québec Court of Appeal upheld the lower court's decision to scrutinize a class action at the authorization phase where the plaintiff's pleadings were "mere assertions".² Read our blog post about this decision here.

Background

The plaintiffs in Jensen commenced the proposed class action in May 2018, seeking $1,000,000,000 in damages from the defendants, three leading...