In Carter v. Ford Motor Company of Canada1 (Carter), the Ontario Superior Court of Justice struck portions of a lawyer’s affidavit that summarized and attached as exhibits various unverified online complaints. The complaints had been tendered to help demonstrate some basis in fact for an alleged defect. In its decision, the court emphasized the limited utility of online complaints to demonstrate some basis in fact, and the narrow scope of documentary evidence that may be submitted through a lawyer’s affidavit.
Evidence submitted for “some basis in fact”
In Carter, the plaintiffs alleged that some of the defendants’ vehicles contained a defective water pump system and that the defendants were aware of the defect. In support of its motion for certification, and to demonstrate some basis in fact that the defendants were aware of the defect, the plaintiffs submitted a lawyer’s affidavit that attached as exhibits anonymous complaints from the website of the U.S. National Highway Traffic Safety Administration (NHTSA).
As noted by the defendants, the evidence of NHTSA complaints raised a number of concerns including that:
Evidentiary burden for certification motions and limited value of online complaints
While recognizing that…