In two recent back-to-back rulings Justice Perell weighed in on the nature and scope of the questions permissible within examinations for discovery after a class action has been certified. In Axiom Plastics Inc. v. E.I. DuPont Canada Co., the dispute on a refusals motion was the appropriate parameters of relevancy of the questions in light of the common issues that had been certified. In Mayotte v. Ontario, the dispute on a refusals motion related to the more narrow issue of whether the questions asked in discovery were relevant to the common issues that were certified.
In both decisions, Justice Perell confirmed the general rule that examinations for discovery are restricted to just the issues that have been certified, but noted that “the approach of restricting the scope of the common issues trial and the associated discovery process to the certified questions is not an absolute rule.” His Honour also made note of a second limiting principle in the context of class actions – the proportionality principle set out in rule 29.02.03 of the Rules of Civil Procedure which requires an examination of the time, expense and prejudice the party asked to answer the question would incur as well as the interference with the progress of the action that may be suffered if the question were ordered answered and the availability of any documents requested.
In Axiom Plastics, Justice Perell found the following four questions helpful to determining the refusals motion:
- Was the question overbroad or speculative?
- Did the question offend the proportionality principle in the sense that answering the question would offer only a modest probative return?
- Was the question relevant having regard to the Statement of Claim but without regard to the common issues? (Notably, Justice Perell stated that this step of question relevance testing does not reduce the scope of the examination for discovery from the action as pleaded and defended)
- Was the question relevant having regard to the effect of the certified common issues on the scope of the examinations for discovery?
Both decisions point to the need for the careful formulation of questions in examinations for discovery in the context of certified class actions.