Paradis Honey: Federal Court chooses sides on sticky issue of post-certification discovery
The ambit of post-certification documentary discovery is a contentious issue. Is it limited by the certified common issues, or are the parties’ discovery obligations broader and governed by the pleadings like a conventional action? The Federal Court recently weighed in on this question for the first time in Paradis Honey Ltd. v. Canada (Agriculture and Agri-Food), 2018 FC 814. Justice Lafrenière rejected the broader approach applied in British Columbia and adopted “the general rule that discovery of documents will be tied to the common issues and to depart from this approach is the exception.” This narrower approach is more in line with the general rule adopted in Ontario.
Paradis Honey is a certified class action on behalf of approximately 1,400 commercial beekeepers who allege damages as a result of federal restrictions on importing honeybees from the United States. We have written about this case twice before: first, following the Federal Court of Appeal’s decision creating a new framework for determining liability of public authorities; and second, following the Supreme Court of Canada’s decision to deny leave to appeal. The Federal Court subsequently certified nine common issues regarding liability and damages.
Approach to post-certification documentary discovery
The representative plaintiff-beekeepers produced relatively few documents following certification, and the Attorney General moved for further and better affidavits of documents. That motion required the Federal Court to address, for the first time, whether documentary discovery in class proceedings in the Federal Courts is limited by the certified common issues, or whether other documents may be producible based on the full pleadings, more like a conventional action. The Federal Court framed this question in pan-Canadian terms: the former (narrower) approach generally describes the law in Ontario, whereas B.C. cases support the latter (broader) approach.
The Federal Court preferred the narrower approach for reasons similar to those indicated by Justice Strathy (now Chief Justice of Ontario) in Abdulrahim v. Air France. Class proceedings are not usual actions, and discovery of the representative plaintiff on matters not relevant to the common issues would not serve “efficiency or economy”. The Federal Court was concerned that “an overly broad request for relevant documents will lead to an unfair imposition on parties, thereby compromising the expediency and efficiency of the class action certification hearing.” There may be exceptions calling for more extensive discovery, however, as “the Court must have access to an evidentiary record that is sufficient with respect to make an accurate determination of the issues.”
As reflected in a prior post on this blog, the Supreme Court of Nova Scotia adopted a similar approach in Hemeon v. South West Nova District Health Authority and limited discovery to the common issues. Like the Federal Court, the Nova Scotia court rejected the broader B.C. approach, which is exemplified by the B.C. Court of Appeal’s decision in Stanway v. Wyeth Canada Inc.
Lesson for defense counsel from Paradis Honey
For defense counsel, Paradis Honey demonstrates that even in jurisdictions that apply the narrower approach to discovery that is limited by the common issues, the representative plaintiffs’ discovery obligations may still extend to documents regarding their individual circumstances. In Paradis Honey, the representative plaintiffs had produced no or limited documents regarding their alleged individual damages, arguing that damages ought to be calculated on an aggregate basis. The Federal Court rejected this position because there were certified common issues regarding both the measure of damages and the availability of aggregate damages, and “[a] party cannot simply restrict production based on their preferred method of assessing alleged damages.” Likewise, representative plaintiffs cannot resist producing documents relevant to causation (another common issue) based on their preferred approach of addressing causation without their individual records.
As the representative plaintiffs omitted available documents that were relevant to the common issues, the Federal Court ordered them to serve further and better affidavits of documents.