ARTICLE · 20 OCTOBER 2023

Two Many Steps: What Is The Test For Establishing A Common Issue?

Sotos LLP

CanadaLitigation, Mediation & Arbitration

Courts have split on the test for certifying a common issue. Some courts have held that the plaintiff only needs to show that there is a basis in fact that a question is common to all class members (the "One-Step Test"). Others have held that the plaintiff must also show that there is a basis in fact that the question "exists" (the "Two-Step Test").

This article starts by assessing how these tests differ, arguing that they are not that dissimilar. In most cases, satisfying one test will also satisfy the other. This article then looks at three recent decisions on this issue, showing that the choice of test would have made little difference.

(HOW) DO THESE TESTS DIFFER?

Both the One-Step Test and the Two-Step Test are designed to assess whether there is a basis in fact for the third criterion for certification. The leading case on what is necessary to meet that threshold is Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57, in which the Supreme Court

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Two Many Steps: What Is The Test For Establishing A Common Issue?

(HOW) DO THESE TESTS DIFFER?

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