Again not legal advice
Thinking a loss of bargain / loss of profit class action after a cancelled condo project ? Looks generally like a job for serious skillsets, bucks & patience
Purely for comparison, the same ONSC Justice Perell was concurrently certifying a different class proceeding but in a product liability dispute.He certified a ( product liability ) class action by 3 car purchasers against BMW on behalf of purchasers of certain older model Mini Cooper cars.
BMW vigorously disputes the claims, which have not been tested in a court of law here.
Mr. Justice Perell held in April 2020 that the claimants
had met a four part test for the ( first stage ) upfront certification. He next awarded $ 300 K to the class of claimants
purely on the disputed certification issue on July 10/20.
Harris v BMW 2020 ONSC 4761 issued Aug 7/20
http://canlii.ca/t/j9529 and
Harris v BMW 2020 ONSC 1647 issued April 2/20
http://canlii.ca/t/j65jhXcrpted April 2/20 :
". . . [70] For certification, the plaintiff in a proposed class proceeding must show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading discloses a cause of action.[11]
[71] The some-basis-in-fact standard sets a low evidentiary standard for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage or opine on the strengths of the plaintiff’s case.[12]
In particular, there must be a basis in the evidence to establish the existence of common issues.[13] To establish commonality, evidence that the alleged misconduct actually occurred is not required; rather, the necessary evidence goes only to establishing whether the questions are common to all the class members.[14]
[72] The some basis in fact standard does not require evidence on a balance of probabilities and does not require that the court resolve conflicting facts and evidence at the certification stage and rather reflects the fact that at the certification stage the court is ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight and that the certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action.[15]
. . . . [74] Unlike most motions, where there is a level procedural playing field, for a certification motion, the proposed Representative Plaintiff has a downhill bunny hill ski slide to certification and the Defendant has a Mount Everest climb to resist certification.
[75] From an evidentiary perspective, while the rules of evidence remain in place, there is a vast difference between a finding that there is some basis in fact and a finding of a fact.
From an evidentiary perspective, there is a vast difference between an expert having a methodology for an opinion and having an opinion.
[76] These truths are painful for defendants, and sometimes the judge hearing the motion feels the pain of certifying what will turn out to be a meritless class proceeding, but certify he or she must, and defendants just need to get over it and move on to the merits part of the proceeding.
[77] And defendants aggrieved with the low standard for certification have the consolation that after certification, the litigation playing field immediately levels and defendants have the usual opportunities to settle or win the litigation.
After certification, there is equal litigation risks and equalized economies of forensic scale to contest the merits of the action.
[78]
Resisting certification is often particularly difficult in in a products liability case. . . .
. . . . [139] There was no serious argument in the immediate case that if the first four certification criteria were satisfied, which they are, then representative plaintiff criterion would also be satisfied.
[140] I conclude that the representative plaintiff criterion is satisfied.” – unquote Justice Perell in Harris v BMW
