Raising The "Low Bar": Plaintiffs Seek New Strategies To Prove Common Issues For Certification

• Published date: 27 May 2025
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: Bennett Jones LLP
• Author: Ms Christine A. Viney, Ethan Schiff and Sidney (Sid) Brejak

A plaintiff's obligation to establish "some basis in fact" for a common issue is acknowledged as a low bar. Several Canadian appellate courts have, however, confirmed a "two-step test" as the standard analytical framework. Under the two-step test, plaintiffs must not only show that the proposed common issues can be answered across the class, but must also establish, as a matter of fact, that the proposed issues exist. The two-step test stands in contrast to a one-step test that considers only if the proposed common issue can be answered across the class.

The added requirement of proving the existence of proposed common issues means plaintiffs need sufficient factual evidence at the certification stage. Looking forward, representative plaintiffs may pursue innovative strategies to gather the evidence needed to meet their evidentiary burden. One such avenue, considered below, involves requesting pre-certification discovery.

Background of the Two-Step Test

The tension between the one-step and two-step tests arose following the Supreme Court of Canada's decision in Pro‑Sys Consultants Ltd. v Microsoft...