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The Meaning of “Existence”: Wrestling with “Some Basis in Fact” and Common Issues After Pro-Sys

Authors: Derek D. Ricci and Michael Finley

For 15 years, the standard of proof applied on certification motions in class actions has been the “some basis in fact” standard. However, the concept of “some basis in fact” is ill-defined, easier to describe in the negative and nearly impossible to delineate with certainty. While fraught with considerable uncertainty, the “some basis in fact” standard has played a key role in ensuring that certification motions continue to act as a meaningful screening device. The Supreme Court of Canada’s most recent jurisprudence may be undeniably pro-certification, but it does not eliminate or lower the “some basis in fact” standard or otherwise attempt to undermine the important screening function of certification motions. In this article, Derek Ricci & Michael Finley explore the concept and the impact of Pro-Sys.

This article was originally published in The Canadian Institute’s Class Action Review, Vol. 1, No. 2.

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