Clarifying the Scope of Examination for Discovery of a Representative Plaintiff: Questions about the Plaintiff’s Individual Action are Permitted

Introduction

In the recent decision of Lipson v Cassels Brock & Blackwell LLP, 2019 ONSC 5524[i], Justice Perell provided clarity as to the rules and guidelines that govern examinations for discovery of representative plaintiffs in class proceedings.

Background

The defendants, Cassels Brock & Blackwell LLP, brought a refusals motion in a certified class action. The representative plaintiff, Mr. Lipson, commenced this class proceeding against the defendants for allegations that they breached the standard of care of reasonably competent tax lawyers regarding legal opinions concerning the tax consequences of participating in a Timeshare Donation Program.

During his examination for discovery, Mr. Lipson refused to answer questions on a number of issues. The defendants brought this refusals motion claiming that the refused questions related to common issues and, therefore, the questions should be answered. The defendants recognized that although the refused questions were also related to individual issues, as a practical matter, it was not possible to separate the individual issues from the common issues.

Analysis and Outcome

In coming to his decision, Perell J. reviewed provisions of the Class Proceedings Act[ii], the Rules of Civil Procedure[iii], and Chapter 16 of the Ontario Law Reform Commission’s Report on Class Actions[iv].

Perell J. noted that 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 proper question relevant to any matter in issue in the action.[v]

Perell J. further found that, the general rule is 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.[vi]

Perell J. emphasized that this is a general and not a categorical rule, noting that there may be instances in which even exploring just the representative plaintiff’s individual issues will be unproductive. He stated that 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.[vii]

Nevertheless, Perell J. found that, however the rule is articulated, the common features must be:

(a) although the representative plaintiff is a class member, he or she is subject to being examined without 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; and

(d) questions that are relevant to the individual issues may be asked if the questions are also relevant to the common issues.[viii]

Interestingly, Perell J. also opined that, while the individual issues in Mr. Lipson’s case would not be binding on the other class members as a matter of issue estoppel, the resolution of Mr. Lipson’s individual issues could be helpful as a matter of precedent, i.e., as a matter of stare decisis. Assuming a successful outcome on the common issues, other class members would be informed about the merits of proceeding with their individual cases, acting in a sense as a test case for those class members similarly situated to Mr. Lipson.[ix]

Perell J. ultimately decided that while Mr. Lipson could properly refuse answering questions about the individual issues of other class members, he ought to have answered questions that arose from the pleadings in his own case.

Implications of the Decision

This case provides helpful clarification on the scope of examination for discovery of a representative plaintiff in a class proceeding. The scope is generally broad and allows defendants to ask questions not only related to common issues, but also related to the representative plaintiff’s individual case.

 

[i] Lipson v Cassels Brock & Blackwell LLP, 2019 ONSC 5524.

[ii] Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 15,16,25,27, and 35.

[iii] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 31.06

[iv] Ontario Law Reform Commission, Report on Class Actions (1982), Chapter 16.

[v] Lipson v Cassels Brock & Blackwell LLP, 2019 ONSC 5524, at para 39.

[vi] Ibid at para 45.

[vii] Ibid at para 46.

[viii] Ibid at para 52.

[ix] Ibid at para 44.

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