Certification is a Technical and Procedural Matter

That there should be no investigation into the merits of a claim during a certification motion has been the law for many years. One example of its impact is in cases in which a party requests that the Court play a role as a gatekeeper.

Justice Perell presided over a certification motion in a proposed class action involving the copying, altering and distribution of court documents through a “for fee” service called Litigator in Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138.

The defendants argued that certification should be denied as the class action served no social utility. Justice Perell reviewed the law on the court's gatekeeper function and the test for certification. According to his review of the law, the bar for certification is low and the court's gatekeeper function is modest and limited. The highest bar is perhaps that of preferable procedure, but Justice Perell commented that this bar will frequently be met as there will be no reasonable alternative to a class proceeding. Justice Perell wrote: “[o]n the certification motion, the court does not assess the merits of the plaintiff's claim or opinion about the social utility of the class action; the court's gatekeeper function and screening function is limited to determining whether the certification criteria are satisfied”.

In Waldman, the fundamental assumption made by the defendants in arguing that the class proceeding was not preferable is that the court would find on the merits that they had committed no legal wrong. Once this assumption was removed by adhering to the principle of not looking at the merits of the claim, a class proceeding was found to be preferable and would not result in an unmanageable proceeding.

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