Class actions are often complex: thousands if not millions of
putative class members may unite, seeking millions if not billions
of dollars. With so much at stake, there is often a
fierce initial battle at the class certification stage over whether
the diverse individual claims are sufficiently common to proceed
together.
On September 20, 2019, the Supreme Court of Canada
(“SCC”) released Pioneer Corp. v. Godfrey 1 an important and remarkable
decision. By an 8:1 majority, the Court outlined a test for
commonality of loss at certification that diverges from what
the plaintiff must show to establish liability at trial. While the
decision has direct implications for actions involving
allegations of anticompetitive conduct, the Court’s
approach to certification will undoubtedly impact the approach
to commonality in other instances.
