Commonality Confirmed – Ontario's Divisional Court Clarifies That There Are Two Steps To The Class Action "Common Issues" Certification Inquiry

The Divisional Court's recent decision in Kuiper v Cook (Canada) Inc offers appellate guidance on an ongoing debate arising in the context of the class action certification requirement that the claims or defences of class members must raise "common issues". The debate centres on whether the common issues inquiry is a one or two-step inquiry. A three-judge panel unanimously determined in Kuiper that "the two-part test still governs the commonality inquiry". The Divisional Court's decision granted partial certification of a proposed class proceeding that the motion judge had previously refused to certify. BLG has commented on this in an earlier post.

Kuiper is a products liability class action. The products at issue relate to certain implantable inferior vena cava (IVC) filters, which were designed to trap blood clots in order to address potentially fatal pulmonary embolisms. The claims advance two principal allegations: (1) defective design; and, (2) breach of the