A recent decision of the Alberta Court of Queen’s Bench has clarified the limits on demands for undertakings, specifically in the context of cross-examining on an affidavit in a proposed class action. The decision provides useful guidance on when the Court will—and will not—compel responses to undertakings refused by a deponent in this situation. In short, the Court is mindful of efficiency and the possibility of prejudice to the defendant, and will only compel responses on undertakings where such production is likely to assist the Court at the certification application.

In the case at bar, Rieger v Plains Midstream Canada ULC,[1] the plaintiffs are awaiting a 2020 certification hearing on a proposed class action involving a pipeline release near Sundre, Alberta. In preparing for the certification hearing, the plaintiffs conducted cross-examination on affidavits filed by the defendant’s corporate representative. The defendant’s representative provided some undertakings, but refused others, leading to the plaintiffs’ application to compel such responses.

In Alberta, adverse parties have the right to cross examine on affidavits filed in support of, or in response to, an application.[2] However, for the purposes of the application, the deponent is a witness, and greater restraint is expected in requesting undertakings than in the examination of a litigant for discovery.[3] Justice Poelman noted that with respect to cross-examination on an affidavit generally:

Undertakings should only be directed where the deponent referred to information or documents in the affidavit (or must have reviewed information or documents to make the statements in the affidavit); or the undertakings relate to an important issue in the application and answering them would not be overly onerous and “would likely significantly help the court in the determination of the application”.[4]

The reference to “the court” is worth highlighting. The Court may order disclosure at the pre-certification stage of a proposed class action, but such discretion will only be exercised in cases where the requested productions are “necessary in order to inform the certification process”.[5] In other words, undertakings from a cross-examination on an affidavit at the pre-certification stage will only be ordered to assist the Court in determining whether to certify an action, and not for the purpose of assisting a litigant. The Court considers the factors in sections 5(1) and 5(2) of the Class Proceedings Act (Alberta)[6] in determining what will be of assistance to the certification decision:

[C]ertification requires that the pleadings disclose a cause of action, there be an identifiable class of two or more persons, the claims of the prospective class members raise one or more common issues, a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, and there is an appropriate proposed representative. […]
Section 5(2) includes a list of factors which, at minimum, the court must consider when determining whether a class proceeding would be the preferable procedure […] [including] consideration of other proceedings or other means of resolving the claims. The preferability inquiry must be conducted in the context of the three principal goals of class actions, namely judicial economy, behaviour modification and access to justice, but the ultimate question is whether other available means of resolution are preferable, not whether a class action would fully achieve those goals.[7]

The merits of the alleged cause of action are not a consideration, and the Court militates against litigating such merits at the pre-certification stage.[8] The Court is also mindful to avoid unnecessary complications that could delay the certification hearing.

In the case at bar, the plaintiffs requested emails and contact lists for members of the proposed class with whom the defendant had communicated, as well as some summary compensation figures regarding the more than 500 claims the defendant had already settled. In denying the application to compel undertakings, Justice Poelman concluded that most of the requested undertakings would not assist the Court in deciding whether to certify the action, and in the case of the emails requested, would not be of enough value to compel their production. His Lordship noted that although some undertakings may have been of tactical use to the plaintiffs, that was irrelevant to the application.

Justice Poelman further noted that the main issue expected at the certification hearing is whether a class action would be the preferable procedure for the fair and efficient resolution of the common issues. Although the process used by the defendant in settling certain claims may be relevant to that question, the certification hearing “is not the occasion for a detailed inquiry into all aspects of the processes followed by the defendant”.[9] His Lordship also noted that the issue of whether other parties that had previously settled were aware of the class action may be relevant, but that the proposed undertakings did not speak to that issue, and that the parties would therefore have to deal with that point using the existing record.

The main takeaway of this decision is that the Court is not readily inclined to order deponents under cross-examination to produce additional evidence, especially in the pre-certification stage of a proposed class action. Applicants should endeavor to argue only why such undertakings would assist the Court in the certification hearing; even then, the Court may decline ordering the requested production on the grounds that it would be unduly onerous for the defendant or that highly detailed evidence review is not appropriate at the pre-certification stage.