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
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
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
Both decisions point to the need for the careful formulation of
questions in examinations for discovery in the context of certified
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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