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www.lawtimesnews.com 19 the illness, he says, "but here, the expert evidence said that the rarity of this type of infection meant the chance that any class member got the infection from any where else is very, very low." On the basis of that ev idence, says Harte, the court was willing to consider the possibility that that evidence might be suff icient to establish a prima facie case, meaning sufficient evidence to prove causation. "But the defendant could still argue that Mrs. Smith got it from her neighbour's epidural clinic." Rather than having the expert testify at the beginning of each individual trial, "you get those decisions made at the common issues trial, and an expert would not need to testify at the beginning of each trial. So, this whole decision was entirely on a procedural matter." Another interesting issue in the case was the use of subclasses, Harte says. The Class Proceedings Act allows a subclass to be defined so that common issues are only common to some of the class members. In this case, he says, the defence was going to argue that a certain number of patients should have brought their lawsuit sooner. But, he says, the lawsuit was brought in September 2014, which stopped the clock from running. Anyone who had a procedure prior to that could not have a limitation argument, but someone who had an injection more than two years before the claim was filed faced a potential limitation defence. "The test for limitation is at a very high level when you knew or ought to have known of underlying negligence," he says. "And so we say that there are arguments common to a subclass, which can be dealt with in class proceeding. So, for example, if the doctor is found negligent, on the basis of a breach of f iduciary duty there, they would have to know when the doctor knew about the various infections. And the doctor's evidence was that he didn't tell anybody. "The Class Proceedings Act is one tool where we can find economy. So, here, sub- classes were set up for common issues, and the limitation period is one example of that." Paul Miller, a plaintiff-side personal injur y law yer in Howie Sacks & Henr y LLP in Toronto, says he found the decision "significant in that a court does not want to be the finder of fact at certification. . . . The judge [here] says, 'The real test of this methodology will come at trial.' That shouldn't be done at certification, because you're not having a full-blown examination- in-chief and cross-examination." The decision "is also is a great demonstration of the flexibility of the class action process," says Harte. "And that is particularly with respect to common issues, because that's what the case is predominantly about. It reaffirms that common issues can be refined, added, deleted, to ref lect the development of evidence that develops through an action." "The threshold for determining whether a common issue exists is 'some basis in fact.' It's a very low threshold." Paul Harte, Harte Law PC