Some Basis in Fact for the Common Issues

For a common issue to be certified, the plaintiff must provide evidence sufficient to show “some basis in fact” that there is a proposed common that can be determined on a class-wide basis. In recent years, much ink has been spilled about what this evidentiary standard requires. Now that it is largely settled in most jurisdictions that “some basis in fact” requires evidence both of the existence of common issues and that they are capable of class-wide resolution (the so-called “two-step” test), courts are turning greater attention to what evidence is required to meet that standard in the context of each case.

In two cases, Price v Smith & Wesson Corp, 2025 ONCA 452 and Eaton v Teva Canada Limited et al, 2026 FC 239, the courts’ applications of the “two-step” test provide examples of what this evidentiary burden looked like on the facts of two different cases. In Price, the court said that more evidence was not required (in particular, that expert evidence was not required) because the plaintiffs had filed sufficient evidence to meet the “some basis in fact” standard. In Eaton, certification was refused because the some basis in fact standard had not been met: there was no admissible evidence to provide some basis in fact for what the plaintiffs alleged—a conspiracy that could or might have affected Canada.

Price v Smith & Wesson Corp

In Price, the Court of Appeal for Ontario overturned the motion judge’s decision and certified a class action against the manufacturer of a stolen handgun used to carry out a 2018 mass shooting on Danforth Avenue in Toronto. The proposed class action was started by victims of the shooting and their families.

While observing that expert evidence can be “extremely helpful” for determining whether a proceeding will break down into individual issues or will be largely controlled by a few common issues, the Court of Appeal in Price provided guidance on when expert evidence may not be required from plaintiffs at the certification stage.

The plaintiffs in Price alleged that the defendant, Smith & Wesson, had negligently designed the M&P40 handgun. This handgun had been designed for military and police use, but one such weapon was criminally misused by the perpetrator of the Danforth Avenue shooting. The crux of the negligent design claim was the lack of features that could prevent unauthorized handgun use, known as “smart gun” or “authorized user” technology.

The Court of Appeal held that, while plaintiffs must show some basis in fact at certification that the proposed common issues exist (not only that the proposed common issues can be determined on a class-wide basis), the evidentiary burden did not extend to requiring expert evidence on every issue that may arise at trial.

The Court of Appeal found that the plaintiffs in this case did not need expert evidence on some issues, for example the existence of a safer yet commercially feasible alternative product design. The Court of Appeal found that other non-expert evidence tendered by the plaintiffs was sufficient to establish “some basis in fact” that authorized user technologies were feasible, that the defendant believed that it could have applied such technologies and that the unauthorized use could cause the harm that the shooter inflicted.

Eaton v Teva Canada Limited et al

In Eaton, in which Bennett Jones acted for Pharmascience Inc., the Federal Court found that the plaintiff had failed to meet four of the five certification criteria, including some basis in fact for the common issues.

The plaintiff sought to bring an action on behalf of all persons in Canada who purchased generic drugs out-of-pocket or through private drug plans from January 1, 2012, onward, claiming C$5 billion in damages under the Competition Act. The claim alleged a broad North American conspiracy involving several generic drug manufacturers—including companies operating only in Canada—to fix prices and allocate the generic drug market.

Central to the plaintiff’s theory were deferred prosecution agreements (DPAs) entered into by certain defendants’ US parents or affiliates admitting to price fixing and market allocation in the US. Although none of the DPAs referenced Canada, the plaintiff alleged that the conspiracy extended across North America, and that the US admissions established some basis in fact for parallel conduct in Canada.

The Court applied the two-step test affirmed in Jensen v Samsung Electronics Co Ltd, 2023 FCA 89, and found that US litigation materials the plaintiff had filed offered “little support” for the plaintiff’s claims about alleged conduct in the Canadian market, as the Canadian and American generic drug markets are “separate and distinct”, with different regulatory frameworks. The Court also found that the plaintiff's expert evidence that the Canadian generic drug market was theoretically “conducive to collusion” did not show some basis in fact for the alleged conspiracy.

Throughout the decision, the Federal Court endorsed its view in Jensen v Samsung Electronics Co Ltd, 2021 FC 1185 (affirmed 2023 FCA 89) that certification is designed to be a “meaningful screening device”, not a “rubber-stamping exercise or symbolic review”, and that a section 45 conspiracy claim cannot proceed on “pure speculation or wishful thinking”.

Looking Forward

Price and Eaton offer two examples of courts applying the two-step test for commonality and assessing what evidence will be sufficient to meet that standard in the given case. Despite the limits on what evidence may be reasonably asked of plaintiffs at the gatekeeping stage of certification, certification remains a meaningful screening device. Ensuring that appropriate evidence grounds common issues helps to weed out structurally unsound actions. This process serves the purposes of class actions, including judicial economy.

Defendants can expect to get more guidance on the “some basis in fact” requirement as courts continue to refine what that standard looks like when applied to establishing the existence of common issues. Additional appellate guidance on the applicable evidentiary burden for establishing commonality, and how it is to be applied, may also be forthcoming in 2026 from the British Columbia Court of Appeal in the appeal from the certification decision in the health care costs recovery litigation against various opioid manufacturers and distributors, in His Majesty the King in Right of the Province of British Columbia v Apotex Inc.

If you have further questions about this update or class action litigation more generally, please contact the authors or a member of the Class Action Litigation group.