Is a plaintiff’s litigation plan and certification order relevant to common issues?

The defendant further argues that a reference to distress arising from the breaches appears in the litigation plan. In Penyfeather v. Timminco Ltd. 2011 ONSC 4257, Perell J. remarked that “the litigation plan and the certification order will define the nature of the common issues trial…”. Accordingly, the defendant argues that the record of the representative plaintiff’s hospital attendances is “relevant in relation to these common issues and to establish the elements of the tort in a precedent setting case for a novel tort, and it believes these documents are relevant for credibility of the plaintiff”. Thus, following the general law of relevance and production, the defendant says the court should “err on the side of requiring production…”.