What is the scope of discovery in a class action?

Nova Scotia, Canada

The following excerpt is from Hemeon v. South West Nova District Health Authority, 2015 NSSC 287 (CanLII):

The general rule, as stated by Strathy J. in Abdulrahin v. Air France, 2010 ONSC 3953, [2010] O.J. No. 3126, is that “in a class proceeding, where the common issues are bifurcated and tried before the individual issues, examination for discovery is limited to the common issues.” The defendant had taken the position that “all matters that touch upon the common issues” – including the damages alleged by the representative plaintiffs – were subject to discovery. Strathy J. adopted the plaintiffs’ position that “the scope of the examination of the representative plaintiffs should be restricted to the common issues…” He said at paras. 12 - 13: No authority is necessary for the proposition that the purpose of discovery is to enable a party to learn about and test the opponent's case, to narrow the scope of the issues, to obtain admissions favourable to the party's case and to promote settlement. In the usual case, the scope of the action, and therefore the scope of discovery, is defined by the pleadings. A class proceeding is not, however, a usual action. It is a special form of action and the C.P.A. contemplates that the proceeding will be bifurcated and that issues that are common will be tried before individual issues in order to achieve efficiency. The scope of the common issues trial is, therefore, defined by and limited to the common issues. For the same reason, discovery prior to the common issues trial should be limited to the issues that are common. Once those issues have been resolved, discovery may be ordered of individual class members (including the representative plaintiffs) on individual issues. It would not serve efficiency or economy to conduct discovery of the representative plaintiffs on matters that are not relevant to the common issues.

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