Common Ground? Class Action Updates

Ontario Superior Court Reins In Proposed Discovery Plan and Common Issues

Common Ground? Class Action Updates

Ontario Superior Court Reins In Proposed Discovery Plan and Common Issues

Date: February 14, 2024

In Curtis v. Medcan Health Management Inc., Justice Perell of the Ontario Superior Court reined in the scope of the plaintiffs’ proposed discovery plan and constrained the scope of the certified common issues in an ongoing employment class action.

This class action relates to an allegation of unpaid vacation and public holiday pay. As we have previously written, the defendant Medcan Health Management Inc. (Medcan) discovered that, due to a payroll error, certain employees had not received vacation and public holiday pay on bonuses and commissions for certain periods of time, as required by the Ontario Employment Standards Act, 2000 (ESA). To remedy the issue, Medcan paid impacted employees outstanding vacation and public holiday pay for the two prior years based on the applicable limitations period. Former employees commenced a proposed class action seeking additional amounts of vacation and public holiday pay. The defendant denied any further monies were owing, including because the claims were barred by the limitations period or releases signed by putative class members.

Justice Perell dismissed the plaintiffs’ certification motion on the grounds that a class action was not the preferable procedure for resolution of the class members’ claims. On appeal, the Ontario Divisional Court subsequently found that Justice Perell had erred in finding a class action was not preferable and certified the action.

In December 2023, the certified action went back before Justice Perell to address a motion brought by the plaintiffs to settle the discovery plan and a cross-motion brought by the defendants to amend the certified common issues.

The plaintiffs proposed a broad discovery plan, which included comprehensive keyword searches of the defendants’ physical and electronic documents as well as 80 hours of discovery of the defendants. Justice Perell rejected this plan as wanting for “common sense, commonality, efficiency, proportionality and fairness.” In particular, the keyword searches proposed by the plaintiffs—which would involve the review of 3.7 million documents and cost an estimated $2.7 million—were “grossly disproportionate to the point of being abusive and an interference with a defendant’s right to access to justice.”

In their cross-motion, the defendants proposed revisions to the certified common issues to tailor them to relate specifically to vacation and public holiday pay, rather than broader issues related to hours of work. Approving the defendants’ proposed changes, Justice Perell noted that “these amendments reflect what the action is actually about and will constrain the Plaintiffs from attempting to make this action about something that it is not.” The motion judge also approved the defendants’ more-tailored discovery plan based on these issues.

In his reasons, Justice Perell reiterated the view from his certification decision that the case was ultimately not about common issues but about individual issues. “Given the Defendants’ formal and informal admissions,” he wrote, “the common issues are a foregone conclusion, and what this case is about and has been about from the outset is whether there is merit to the Defendants’ defenses based on releases and limitations periods.” Further discovery was unnecessary prior to a common issues trial, which would be a mere formality, before the case went to individual issues trials where more discovery would be necessary.

The Court’s decision is an important reminder to litigants to appropriately tailor common issues and discovery plans to address the issues in dispute in the litigation. It is also a good lesson on how to approach discovery, even in class proceedings; that is, through the necessary lenses of proportionality and relevance.

Hicks Morley’s Elisha Jamieson-Davies was co-counsel for the defendants in this matter.

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