How have the Underwriters argued that the preferable procedure criterion is not satisfied in the immediate case?

In persisting in their objection that the preferable procedure criterion is not satisfied in the immediate case, the Underwriters rely principally on Justice Nordheimer’s decision in Bellaire v. Independent Order of Foresters.[19] In this regard, I quote paragraph 49 from the Underwriters’ factum, which states [emphasis added by the Underwriters]: 49. Writing for this Court in Bellaire v. Independent Order of Foresters, Justice Nordheimer (as he then was) recognized that the machinery of class actions should only be employed where there is evidence that there is a group of parties that are interested in pursuing an actual complaint: In my view, before the extensive process of a class proceeding is engaged, it ought to be clear to the court that there is a real and subsisting group of persons who are desirous of having their common complaint (assuming there to be a common complaint) determined through that process. The scale and complexity of the class action process ought not to be invoked at the behest, and for the benefit, of a single complainant.

There, however, is no requirement in the Class Proceedings Act, 1992 that the plaintiff to obtain certification must show some basis in fact that there is a “real and subsisting group who are desirous to having their common complaint determined” and Bellaire v. Independent Order of Foresters is an example of one of those relatively rare cases where Class Counsel trips and stumbles and cannot manage to step over the low hurdle of showing some basis in fact that a common complaint even exists.[20]