In its recent decision in Fehr v Sun Life Assurance Co. of
Canada, the Ontario Court of Appeal, overturning in part
certain holdings of the lower court, certified a class-action
lawsuit brought on behalf of former policyholders respecting the
sale of universal life policies issued by predecessors of the
defendant.
The ruling represents the most recent appellate statement with
respect to the extent to which courts should delve into the merits
of a proposed class action at the certification stage. In
particular, the Court has clarified that, in considering the
"common issues" criterion for certification, the
certification judge should determine whether the plaintiff has
established some basis in fact for the existence of an
issue that can be decided on behalf of all class members. The
certification judge should not determine whether there is
a basis to conclude that the proposed common issue should be
decided in the plaintiff's favour. The Court
