"Conflicting" Defence Evidence Not Sufficient To Deny Class Certification

The Divisional Court's recent decision in Dine v Biomet Inc, 2016 ONSC 4039 will be of particular interest to members of the class action bar in Ontario, as it will have implications for evidence led on certification motions.

Overview

The defendants in Dine v Biomet sought leave to appeal Justice Belobaba's decision certifying a proposed multiple model product liability class action. The case involved several models of metal-on-metal hip implants that were allegedly defectively manufactured and designed by the defendants.

In a decision released in June, leave to appeal was denied. Justice Then's reasons focused largely on whether evidence of commonality touching on the merits of the claim ought to be considered at the certification stage of a proposed class action.