Publication
Published December 10, 2018
In certifying a class, the certification judge must proceed in a “flexible and liberal manner, seeking a balance [of considerations] of efficiency and fairness”. Despite this purposive approach, however, the certification process requires the court to undertake an analysis of whether the proposed class action accords with the purpose of class action legislation through a five-part statutory test. In conducting this analysis, the court will consider whether:
Of these five criteria, the two that tend to receive the most judicial scrutiny are the existence of a cause of action and the element of commonality. While the various class criteria are inherently interrelated, commonality and cause of action are uniquely linked. In fact, commonality may be grounded on the mere existence of a common cause of action.
This chapter was first published in Class Action Defence Quarterly, Volume 3, Number 2. The full chapter with citations is available here.