Upon request by the parties to a proposed Class Action, Associate Chief Justice Rooke provided further decisions and reasons on matters related to the Certification Application, including an Application to strike the Representative Plaintiff’s Affidavit in support of Certification. The Defendant argued that the Affidavit was irrelevant, but even if relevant to some extent, its probative value was far outweighed by the prejudicial effect to the Defendant. One of the issues was that it was purportedly based on hearsay. The Representative Plaintiff argued that the evidence was admissible and relevant to Certification, and cited Rule 13.18 in support of their argument.

His Lordship stated that the Rule permits hearsay evidence at the procedural Certification stage because there is no formal finding of fact. Rooke A.C.J. held that portions of the Affidavit evidence may be relevant as some basis in fact that delay was an issue. If established at the common issues Trial, the issue of delay could impact on the class definition. Rooke A.C.J. further stated that the Plaintiff should be given some “Leeway” to establish “some basis in fact” and allowed portions of the evidence.