A Tale Of Two Jurisdictions: Evidentiary Threshold At Certification

It has been the best of times for Canadian class action plaintiffs: an unprecedented level of attention from Canada's top court has affirmed Canada's relatively low evidentiary threshold at certification. These decisions also confirm that, with respect to the role of evidence at certification, Canada and the United States are on divergent paths.

Canada's Relatively Low Evidentiary Threshold

In three consumer class action certification appeals known as the Indirect Purchaser Trilogy, discussed here and here, the Supreme Court of Canada affirmed that the evidentiary threshold to be met on a certification motion is the relatively low "some basis in fact". In coming to this conclusion, the Court considered and rejected the American approach, as set out in Wal-Mart v. Dukes and In Re Hydrogen Peroxide Antitrust Litigation, which subjects proposed class actions to rigorous analysis and permits factual determinations to be made at the certification stage on a