How Broad Are Class Action Discovery Examinations In Ontario?

As more certified class actions head towards trial in Ontario, the courts have increasingly considered the proper scope of examinations for discovery, and a cohesive set of principles is starting to emerge.

First and foremost, as with any civil action, the scope of discovery is defined by the pleadings and discovery questions must at a minimum be relevant to the issues as defined by the pleadings. Overbroad or speculative discovery is not permitted.

In class proceedings, however, the general rule is that examinations for discovery are also restricted to the issues that have been certified (see 1176560 Ontario Ltd v Great Atlantic & Pacific Co of Canada; Andersen v St Jude Medical Inc, affirmed; Abdulrahin v Air France). So, for example, where the pleaded issues are narrowed by the certification decision to a more discrete set of common issues, discovery may be limited to the common issues that are proceeding to trial.

This is not an absolute rule, and exceptions may be permitted where the certification order is clear that the parties’ discovery rights should cover all of the issues in the action and not just those certified as common issues (see CIBC v Deloitte & Touche and Pennyfeather v Timminco Limited).

Also relevant is the proportionality principle set out in Rule 29.02.03 of the Ontario Rules of Civil Procedure, which requires the parties to consider the time and expense of the discovery question or request in light of its relevance and materiality to the common issues in dispute.

Finally, in a trio of recent decisions the court has identified the types of questions that parties can refuse to answer in the class action context (see Axiom Plastics Inc v EI DuPont Canada, 2038724 Ontario Ltd v Quizno’s Canada Restaurant Corp, and CIBC v. Deloitte & Touche) . These are:

• Unanswerable: the question is not capable of being answered, i.e., it is vague, unclear, inconsistent, unintelligible, redundant, superfluous, repetitious, overreaching, beyond the scope of the examination, speculative, unfair, oppressive, a matter of rhetoric or argument, or beyond the knowledge, information or belief of the witness.
• Immaterial: the question is not material, i.e., it falls outside the parameters of the action and does not address a fact in issue.
• Irrelevant: the question is not relevant, i.e., it does not have probative value and does not adequately contribute to determining the truth or falsity of a material fact.
• Untimely: the question is not relevant to the class period because it concerns events or matters outside of the class period, or more generally, concerns events temporally unconnected to the cause of action or defence.
• Idiosyncratic or uncommon: the question is not relevant to the common issues because it concerns an individual inquiry that was not certified for the common issues trial.
• Answered: the question or the documents relevant to the question have already been provided by the party being examined.
• Disproportionate: the question is disproportionate, i.e., the question may be relevant but providing an answer offends the proportionality principle.
• Privileged: the answer to the question is subject to a privilege, i.e., solicitor client privilege, litigation privilege, or settlement privilege.

Most of these objections apply equally outside the class action context.