In Lilleyman v Bumble Bee Foods LLC, 2024 ONCA 606, the Ontario Court of Appeal affirmed the motion judge’s dismissal of certification for a class action alleging price-fixing of canned tuna. The Court unanimously affirmed that representative plaintiffs must meet a two-step evidentiary test to satisfy the commonality requirement of section 5(1)(c) of the Ontario Class Proceedings Act, 1992 (CPA): there must be some basis in fact that the proposed common issues (1) actually exist, and (2) can be answered in common across the entire class. The Court described this approach as “a matter of logic and common sense.”

Despite successful parallel antitrust actions by the U.S. Department of Justice, the motions judge dismissed the certification motion, citing, inter alia, insufficient evidence that the alleged conspiracy existed in Canada. In that context, the common issues test could not be met.

This decision underscores the court’s important gatekeeping role in ensuring that certification is denied when there is inadequate evidentiary support for the existence of common issues. This decision affirms for Ontario the application of the two-step test previously endorsed by other courts, including the Federal Court of Appeal.

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• The Court of Appeal noted that the motion judge need not specifically engage in a two-step analysis. But the Court held that the primary goal of certification is to filter out frivolous claims; a class action should not proceed without a factual basis for the proposed common issues.
• The Court of Appeal held that the motion judge’s dismissing certification was a final order. While certification orders are generally considered to be interlocutory in nature, in this case, the practical effect was to conclude that no cause of action exists, thereby finally ending the litigation.
• The Court also concluded that a deferential standard applies to a motion judge’s findings of pleaded fact. The Court clarified that, while identifying the elements of a cause of action is a legal question reviewable on the standard of correctness, assessing whether the pleaded facts support a cause of action involves a mixed question of fact and law, reviewable on the deferential palpable and overriding error standard.