Recall Evidence And Some Basis In Fact At Certification Motions

Published date15 July 2021
Subject MatterLitigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
Law FirmMLT Aikins LLP
AuthorMr Jason Mohrbutter and Zoe Johansen-Hill

Is the presence of a product recall sufficient to support a class action proceeding? Two recent appellate decisions involving automotive recalls illustrate that recalls cannot be blindly relied on as some basis in fact in support of class action certification.

Spring v. Goodyear Canada Inc., 2021 ABCA 182 (Goodyear) and Maginnis v. FCA Canada Inc., 2021 ONSC 3897 (Maginnis) demonstrate that the legal theory of a class claim must be consistent with the scope and nature of the recall. Additionally, the presence of a recall in itself and without other evidence did not provide some basis in fact for the certification requirements in these cases.

Some Basis in Fact

Twenty years ago, the Supreme Court of Canada established, in Hollick v. Toronto (City), 2001 SCC 68, that class representatives "must show some basis in fact for each of the certification requirements." This evidentiary standard exists somewhere below the standard of a balance of probabilities and operates in relation to the procedural requirements of certification.

A low evidentiary burden is consistent with the generous legislative goals set out in class action statutes. Yet the evidentiary burden on plaintiffs must rise above symbolic scrutiny in order to allow certification applications to serve as a meaningful screening device. See Pro-Sys Consultants Ltd. v Pro-Sys Corporation, 2013 SCC 57 (Pro-Sys).

The merits of the underlying action are not determined at certification, but, as Goodyear and Maginnis demonstrate, they play an important role. The theory of the class claim must be consistent with the certification evidence and some basis in fact for class-wide loss must be presented.

The Goodyear Decision

In Goodyear, the plaintiff received a recall notice for six tire types manufactured during a 13-week time period. When he went to get a replacement, the Goodyear dealership informed the plaintiff that his tires were manufactured prior to the period covered by the recall notice. The plaintiff later experienced a tire failure and launched a class action on behalf of others who bought Goodyear tires and suffered a systematic manufacturing defect. However, the plaintiff framed the claim beyond the recall notice and included 51 types of Goodyear tires manufactured over a broader period of time.

The motion judge certified the action at the certification hearing. Goodyear appealed this decision on a number of grounds, including whether there was sufficient evidence of a common defect.

The plaintiff...

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