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
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
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
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
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
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.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).