Raising the “Low Bar”: Plaintiffs Seek New Strategies to Prove Common Issues for Certification

Written By Christine Viney, Ethan Schiff and Sidney Brejak

A plaintiff’s obligation to establish “some basis in fact” for a common issue is acknowledged as a low bar. Several Canadian appellate courts have, however, confirmed a “two-step test” as the standard analytical framework. Under the two-step test, plaintiffs must not only show that the proposed common issues can be answered across the class, but must also establish, as a matter of fact, that the proposed issues exist. The two-step test stands in contrast to a one-step test that considers only if the proposed common issue can be answered across the class.

The added requirement of proving the existence of proposed common issues means plaintiffs need sufficient factual evidence at the certification stage. Looking forward, representative plaintiffs may pursue innovative strategies to gather the evidence needed to meet their evidentiary burden. One such avenue, considered below, involves requesting pre-certification discovery.

Background of the Two-Step Test

The tension between the one-step and two-step tests arose following the Supreme Court of Canada's decision in Pro‑Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57. There, Justice Rothstein said “to establish commonality, evidence that the acts alleged actually occurred is not required. Rather, the factual evidence required at this stage goes only to establishing whether these questions are common to all the class members.” Plaintiffs have relied on this statement as establishing that proposed common issues do not need to have a basis in fact to allow certification.

In Kalra v Mercedez Benz, 2017 ONSC 3795, the Court interpreted Pro‑Sys as establishing a one-step test for all common issues analysis, regardless of whether the plaintiff adduced evidence of the existence of the proposed common issues. Other Ontario courts maintained that some basis in fact for the existence of the common issue was required (see, for example, Kuiper v Cook (Canada) Inc., 2020 ONSC 128). In Jensen v Samsung Electronics Co, 2023 FCA 89, the Federal Court of Appeal affirmed the two-step approach in 2023.

The debate in Ontario was settled by the Court of Appeal in Lilleyman v Bumble Bee Foods LLC, 2024 ONCA 606 (leave to Supreme Court of Canada denied March 27, 2025), a case alleging a conspiracy to price-fix canned tuna. In upholding the dismissal of certification, the Court of Appeal unanimously affirmed a test requiring evidence of the existence of the proposed common issues. Despite successful parallel antitrust actions in the United States, the plaintiffs failed to lead sufficient evidence that any conspiracy about canned tuna existed in Canada, precluding certification. The Court described its approach as “a matter of logic and common sense.”

Pre-certification Evidence Gathering

One avenue for plaintiffs to secure the evidence needed to prove that a common issue exists is through a request for pre-certification discovery. Such a request was recently considered by the Alberta Court of King’s Bench in MacKenzie v The Calgary Board of Education, 2024 ABKB 305.

The three representative plaintiffs in MacKenzie allege that they are victims of sexual and physical assaults committed by former teachers. In advance of the certification hearing, they sought documentary and oral discovery from the Calgary Board of Education, which they said was needed to establish some basis in fact that there was a “common issue”. The defendants argued that the evidence sought went to the merits of the case and was not relevant for certification.

The Court concluded that although the information sought would be “valuable” to the plaintiffs at the certification stage, most of it was not necessary to "fairly determine" certification, which the Court described as an exercise in determining the “proper forum” for a merits determination. The Court identified two narrow exceptions relating to the tenure and activities of the alleged abusers.

In deciding that the requested pre-certification discovery was unnecessary, the Court cited concerns about delay, particularly because the certification hearing itself was scheduled to take place in less than three months. The Court held that it must weigh pre-certification disclosure obligations against the risk of undue delay, and this factor weighed against ordering early production. This consideration may encourage plaintiffs to take earlier steps to secure pre-certification disclosure.

Looking Forward

Plaintiffs may use pre-certification discovery among various strategies to secure the evidence needed to prove the existence of the common issues they are seeking to have certified. Looking forward, we expect courts to consider these strategies in light of the two-step test and to apply a balancing test that weighs the importance of the information the plaintiffs are trying to secure as part of a fair determination of whether there are common issues against other factors within each proposed class action.

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