Court permits filing of additional evidence - after certification has already been denied

March 24, 2008

An update to the Risorto v. State Farm decision, in which the plaintiffs lost in their bid to certify the proceeding as a class proceeding (when on February 22, 2007 Cullity J. dismissed the motion to certify on grounds of insufficient evidence to support a proposed common issue). Justice Cullity had concluded that the expert put forward by the plaintiffs was not qualified to give the opinion he purported to give, on which the plaintiffs relied for their central common issue, and as well, Justice Cullity found that the expert evidence was in any case insufficient (see our June 2007 Class Action Update for the summary). The plaintiffs launched an appeal but at the same time, and without having a formal order taken out, they retained a new expert, and brought a further motion to Justice Cullity to "adjourn" the certification motion and permit the filing of additional (new) evidence, which they hoped would remedy the deficiencies found in the prior expert evidence.

In a somewhat surprising decision, Justice Cullity ordered that the certification motion be essentially re-opened and then adjourned to permit additional affidavits to be delivered.

In so doing, Justice Cullity relied on section 5(4) of the Class Proceedings Act. That provision allows the court to adjourn the motion for certification to permit the parties to amend materials or pleadings or to permit further evidence. Justice Cullity rejected the argument from the defendant that the provision surely was only intended to apply while the motion was still before the court and not after it had been dismissed, and instead relied on the "flexible" nature of the Act. Justice Cullity noted: "Where there is an arguable case that the new evidence might justify certification, I believe it should be admitted and the question of certification reopened".

In particular, Justice Cullity found that since no formal Order had yet been taken out, the matter was still before him.

The Defendant has sought leave to appeal the decision

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