The British Columbia Court of Appeal’s recent decision in Nissan Canada Inc. v Mueller, 2022 BCCA 338, provides appellate guidance on the “some basis in fact” standard for the commonality requirement on class action certification. Ontario courts have debated over many years whether such an inquiry is governed by a one-step or two-step test. Here, the Court rejected the two-step approach, confirming that the evidentiary threshold for supporting proposed common issues is low and must focus on whether the asserted issue has class-wide application. The decision also provides guidance on the pleadings standard in product liability claims.
Background
In March 2021, the Supreme Court of British Columbia certified a class action against Nissan Canada Inc. and Nissan North America, Inc. (“Nissan”) arising from allegations that the timing chain mechanisms in engines installed in certain vehicles were prone to premature failure.[i] The claim pleaded several causes of action and sought damages for repair costs and diminution in value, among other things.
Nissan appealed on the basis that the judge erred in (1) finding the causes of action were sufficiently pleaded; and (2) finding there was sufficient evidence to establish the common issues, especially regarding the existence of a common dangerous defect.
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