The appellant appealed a motion judge's decision refusing to certify a proposed class action against a medical clinic for infection control lapses during endoscopies.
The motion judge had denied certification on the basis that the appellant failed to establish an identifiable class of two or more people who suffered harm.
The Divisional Court allowed the appeal, finding the motion judge erred in law by requiring evidence of actual harm to multiple people at the certification stage, rather than just an objective basis to identify class members.
The matter was remitted to the motion judge to determine the remaining certification criteria.
