Judge Kelleher of the BC Supreme Court certified this employment law action as a class proceeding under the BC Class Proceeding Act.
In Somerville v. Catalyst Paper Corporation, 2011 BCSC 331 (CanLII) the court concluded that the case was suitable to carry on, not as an individual action, but as a proceeding on behalf of all other class members, according to the classes identified.
Judge Kelleher wrote:
[35] The question under s. 4(1)(c) of the Act is “whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis”: Western Canadian Shopping Centres Inc. at 39. See also: Hollick at para. 18. This question is to be applied narrowly: Rumley v. British Columbia, 2001 SCC 69 (CanLII), 2001 SCC 69, [2001] 3 S.C.R. 184 at para. 33. In Western Canadian Shopping Centres, the Supreme Court of Canada described the analysis as follows, at para. 39:
…Commonality tests have been a source of confusion in the courts. The commonality question should be approached purposively. The underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis. Thus an issue will be “common” only where its resolution is necessary to the resolution of each class member’s claim. It is not essential that the class members be identically situated vis-à-vis the opposing party. Nor is it necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member’s claim. However, the class members’ claims must share a substantial common ingredient to justify a class action.
[36] Huddart J.A., writing for the majority in Harrington v. Dow Corning Corp, 2000 BCCA 605 (CanLII), 2000 BCCA 605, leave to appeal ref’d [2001] S.C.C.A. No. 21, described the extent of commonality required for an issue to be certified as a “common issue.” At paras. 23‑24, she wrote:
I would have thought that the word “issue” simply meant a point in question, a point affirmed by the plaintiff and denied by the defendant. If the point of fact or law is necessary to the successful prosecution of the cause of action (or in some circumstances to its defence), then its resolution will inevitably move the litigation forward. The degree of materiality and the interplay among the various common and individual issues is a matter for consideration under s. 4(1)(d) and thus s. 4(2), not a matter for consideration under s. 4(1)(c).
More important to a determination of common issues is the requirement that they be “common” but not necessarily “identical”. In the context of the Act, “common” means that the resolution of the point in question must be applicable to all who are to be bound by it. I agree with the appellants that to be applicable to all parties, the answer to the question must, at least, be capable of extrapolation to each member of the class or subclass on whose behalf the trial of the common issue is certified for trial by a class proceeding…
[37] The plaintiff need not demonstrate that the resolution of a common issue will, in and of itself, support relief: Campbell v. Flexwatt Corp., [1997] B.C.J. No. 2477 (C.A.), leave to appeal ref’d [1998] S.C.C.A. No. 13. Nor does the plaintiff need to show that everyone in the class shares the same interest in the resolution or that the issue will be answered the same for each class member: Hollick at para. 21. See also: Endean v. Canadian Red Cross Society 1997 CanLII 2079 (BC S.C.), (1997), 148 D.L.R. (4th) 158 (B.C.S.C.) at para. 40, rev’d on other grounds 1998 CanLII 6489 (BC C.A.), (1998), 157 D.L.R. (4th) 465 (B.C.C.A.).
[38] The test has been held to be a “low bar”. The court in Fresco v. Canadian Imperial Bank of Commerce, 2009 CarswellOnt 3481 (S.C.J.), aff’d (2010), 323 D.L.R. (4th) 376 (Ont. S.C.J. Div. Ct.), emphasized this at para. 52:
[52] The common issues criterion is not a high legal hurdle, but a plaintiff must adduce some basis in fact to show that issues are common: Hollick at para. 25. An issue can be common even if it makes up a very limited aspect of the liability question and although many individual issues remain to be decided after its resolution: Cloud [v. Canada (Attorney General) 2004 CanLII 45444 (ON C.A.), (2004), 247 D.L.R. (4th) 667 (Ont. C.A.)] at para. 53. It is not necessary that the answers to the common issues resolve the action or even that the common issues predominate. It is sufficient if their resolution will significantly advance the litigation so as to justify the certification of the action as a class proceeding.
[39] The significance of the common issues may be examined in relation to the individual issues: Western Canada Shopping Centres at para. 39. However, s. 4(1)(c) of the Act excludes an examination of the possible predominance of individual issues: Harrington at para. 23. See also: Jones v. Zimmer, 2010 BCSC 1504 (CanLII), 2010 BCSC 1504 at para. 10. The fact that there are numerous individual issues that remain to be litigated after the conclusion of the common issues trial is a consideration under the preferable procedure analysis: Hollick.
[40] An issue is not common where it raises questions that require an assessment of individual facts, specific to each class member, thereby necessitating a determination on an individual basis: Lam v. University of British Columbia, 2010 BCCA 325 (CanLII), 2010 BCCA 325. In Egglestone v. Barker, [2003] O.J. No. 3137, 38 C.P.C. (5th) 386 (S.C.J.), Cullity J. observed at para. 18:
If, on the basis of the pleading and the minimum evidentiary record required, the court concludes that an issue cannot be determined on a class-wide basis at a trial – that it would have to be decided separately in the light of the particular circumstances of each member – certification on the basis of such an issue would not be justified. This would be so whether the defect is to be understood as detracting from the commonality of the issue, or as affecting the question of the preferable procedure…
[41] It is noteworthy that the list of common issues may be refined as the litigation progresses: Brogaard v. AG Canada, 2002 BCSC 1149 (CanLII), 2002 BCSC 1149, at para. 114. See also: Hoy v. Medtronic, 2001 BCSC 1343 (CanLII), 2001 BCSC 1343, aff’d 2003 BCCA 316 (CanLII), 2003 BCCA 316. However, it is important to identify common issues at the certification stage: Caputo v. Imperial Tobacco Limited 2004 CanLII 24753 (ON S.C.), (2004), 236 D.L.R. (4th) 348 at para. 56.
[42] In summary, a common issue is an issue of fact or law that is a substantial common ingredient of each class members’ claim, and its resolution must be necessary to the resolution of each class member’s claim. In that way, the certification and litigation of a common issue moves the litigation forward.