The B.C. Court of Appeal increasingly stands alone in refusing to limit the scope of discovery in class actions to the common issues. A closer look, however, reveals that the difference may be more rhetorical than real.
Two years ago, in June 2013, the B.C. Court of Appeal upheld the B.C. Supreme Court’s ruling in Stanway v. Wyeth Canada Inc. that the scope of discovery in class actions is not limited by the common issues. The court held that the usual rule—relevance and materiality, as defined by the pleadings—applies.
By contrast, in Ontario and Alberta—and now in Nova Scotia—the scope of discovery is generally restricted to the common issues.
As early as 2003, the Ontario Superior Court held in 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada that it is the certification order, and not the pleadings, that define relevance. The court has affirmed this approach on many occasions, most recently in Fischer v. IG Investment Management Ltd., decided in June 2015.
The Alberta Court of Queen’s Bench observed in TL v. Alberta (Child, Youth and Family Enhancement Act, Director) that class actions are “bifurcated” into stages—one concerned with common issues, and one concerned with individual issues. The court held, accordingly, that the scope of discovery at each stage should be determined by the issues at each stage.
Most recently, in Hemeon v. South West Nova District Health Authority, decided October 14, 2015, the Supreme Court of Nova Scotia explicitly rejected the B.C. approach, holding that “the Ontario authorities provide a more convincing method of applying general production and relevance to class proceedings.”
Notably, the above decisions were all made, either in whole or in part, against defendants.
The B.C. approach may not be as distinct as it at first appears, however. All the above cases held that the general rules of relevance and materiality apply. The Ontario and Nova Scotia decisions noted that their formulation is not an absolute rule. And even the B.C. court in Stanway acknowledged that “the key determinant of relevance and materiality [is] the certified common issues.”
Whatever the rhetoric of choice in each jurisdiction, the decisions suggest that it will be difficult to predict with certainty what will be considered relevant and material in the context of a class action.