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Re-Evaluating the Scope of Discovery of a Representative Plaintiff in a Class Action

5 minute read

In Lipson v Cassels Brock & Blackwell LLP,2019 ONSC 5524, Justice Perell considered whether the current rules that govern the examination of representative plaintiffs in class proceedings should be revisited.

Facts

This was a refusals motion brought by the defendants in this certified class action involving allegations that the defendants breached the standard of care of reasonable competent tax lawyers by endorsing a Tax Program. The defendants argued that the representative plaintiff improperly refused questions and should be ordered to re-attend examination for discovery. Mr. Lipson, the representative plaintiff, attended an examination for discovery, during which he gave several refusals.2 The defendants challenge the refusals on the basis that although the questions were also related to individual issues, as a practical matter, it was not possible to separate the individual issues from the common issues.3 The court concluded that Mr. Lipson’s refusals were not justified and that he should re-attend to answer the unanswered questions.4

Rules and Statutes

Rule 31.06(1) of the Rules of Civil Procedure set out the scope of an examination for discovery for plaintiffs and defendants in a normal action. The Class Proceedings Act, 1992 (the “CPA”), is the statute governing class proceedings in Ontario. The relevant provisions relating to the scope of examination for discovery appear in sections 15 and 16 of the CPA. Section 15(1) provides that parties to a class proceeding have the same rights of discovery under the rules of court against one another as they would have in any other proceeding. Section 16 provides that leave of the court is required to examine any other class member after discovery of the representative plaintiff has been completed. Further, section 35 of the CPA confirms that the rules of the court apply to class proceedings.

In considering the rules, Perell J. noted, “Thus, pursuant to rule 31.06(1), a defendant has the right to expect that the representative plaintiff examined for discovery should answer, to the best of his or her knowledge, information and belief, any prober question relevant to any matter in issue in the action.”Further, Justice Perell observed, “…while the representative plaintiff cannot be examined about the class members’ discrete individual issues, the representative plaintiff can be examined about his or her own individual issues because those individual issues would be a matter in issue in the action.”6

The General Rule

In the decision, Perell J. noted, “In my opinion, the general rule is and should be that the representative plaintiff is subject to the same discovery obligations as any plaintiff in a normal proceeding, but the representative plaintiff may answer or refuse to answer questions that are relevant only to other Class Members’ discrete individual issues.7

Justice Perell was clear that this is a general rule and not a categorical rule:

There may be instances in which even exploring just the representative plaintiff’s individual issues will be unproductive but, in my opinion, the general rule should be that the representative plaintiff in a certified class proceeding is subject to the same discovery obligations as any plaintiff in a normal proceeding. Class actions are not monolithic and the interplay between common issues and the individual issues trials will vary and thus the general rule should not be treated as an absolute rule.8

Perell J. noted the common features in the rule for the scope of the examination of a representative plaintiff:

  • (a) Although the representative plaintiff is a class member, he is subject to being examined without the leave of the court;
  • (b) The questions he or she is asked must be relevant to the pleadings;
  • (c) The questions must be relevant to the common issues, which feature adds little and actually subtracts or restricts the scope of the discovery because the common issues are, in any event, distillated from the pleadings; and
  • (d) Questions that are relevant to the individual issues may be asked if the questions are relevant to the common issues.9

In considering the current case law, Justice Perell observed, “While the current case law supports that the general rule is that questions that are exclusively related to the individual issues of a class member may be refused by the representative plaintiff, it does not follow that the representative plaintiff necessarily cannot be asked questions about his or her own case.10 Whether the representative plaintiff can be asked questions about his or her own individual actions will depend upon the exigencies of the particular case.”9

Conclusion

Overall, this case confirms that on an examination for discovery, a representative plaintiff has the same discovery obligations as would apply in a normal proceeding under the Rules of Civil Procedure. However, there is an important distinction, while questions related to the common issues should always be answered, the court may require questions related to the individual issues, within the representative plaintiff’s knowledge, to be answered. Whether the scope of examination of discovery for a representative plaintiff has truly been broadened will be determined by how future class action cases interpret Justice Perell’s decision in this case.11


[1] Lipson v Cassels Brock & Blackwell LLP, 2019 ONSC 5524.
[2] Ibid at para 30.
[3] Ibid at para 33.
[4] Ibid at para 57.
[5] Ibid at para 39.
[6] Ibid at para 40.
[7] Ibid at para 4.
[8] Ibid at para 46.
[9] Ibid at para 52.
[10] Ibid at para 54.
[11] Ibid.

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