What is the test for certifying common issues?

There must be some basis in the evidence before the court to establish the existence of the common issues: Hollick v. Toronto (City), above, at para. 25. It should be kept in mind, however, that in certifying a common issue the court is not concluding that it will be answered in a manner favourable to one party or the other. The requirement that there must be an evidentiary basis for the existence of a common issue is a far cry from proof of the issue on the balance of probabilities.

The resolution of common issues is what a class action is all about. As Winkler J. said in Bywater v. Toronto Transit Commission, above, at para. 12: The Class Proceedings Act, 1992, is an entirely procedural statute, and, as such, does not create any new cause of action. A decision on certification does not constitute a determination on the merits of the action. The presence of common issues is at the very center of a class proceeding. It is the advancement of the litigation through the resolution of the common issues in a single proceeding which serves the goals of the Act. It is clear from the language of s. 5(1)(c) that the Act contemplates that there be a connection between the common issues, the claims or defences and the class definition. In like fashion, the common issues must have a basis in the causes of action which are asserted.