How is relevance and materiality determined in a class proceeding?

The same issue was addressed in TL v. Alberta (Child, Youth and Family Enhancement Act, Director), 2010 ABQB 203, [2010] A.J. No. 329, where Thomas J. said, at para. 16: While the traditional starting point for determining relevance and materiality is the pleadings, I am satisfied that the bifurcated nature of class proceedings requires a modified approach. In this case, the class proceeding is still at its first stage and as such, the relevance and materiality of a record ought to be determined by reference to the common issues. This position is consistent with the C.P.A., which clearly sets out a bifurcated process that distinguishes between the common issues that are shared collectively by all class members, and the individual issues particular to each separate class member. In order to preserve the goals of access to justice and judicial economy, it is imperative to respect the bifurcated process and to not confuse the common issues at the first stage with matters that are best left to the determination of any outstanding individual issues at the second stage.

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.