Canada
Answer ... Prior to certification, starting with the common law provinces, there is generally no obligation on a representative plaintiff or defendant to disclose a complete list of documents relevant to the merits of the case prior to certification. However, documents and information relevant to the test for certification may need to be disclosed and in some provinces affiants must swear to the fact they have provided all material facts relevant to the certification motion. In Quebec, plaintiffs are generally not entitled to obtain document disclosure from defendants at the certification stage. Defendants must obtain permission from the court to file their own evidence at the certification stage; permission will be granted only if the evidence relates to the criteria for certification. Defendants must also obtain permission from the court to examine the representative plaintiff.
After certification, the procedural rules of court of each forum will determine the extent of document disclosure and production. In the common law provinces, the parties will generally be required to produce all relevant documents in their possession, control or power, absent a claim of privilege. In Quebec, document disclosure is made in response to specific requests from the other party, and these requests are typically made prior to and during examinations for discovery.
After certification, the parties have essentially the same rights to discovery as they would in a traditional action, although the representative plaintiff is the only party against which those traditional rights apply. Before the common issues trial, the scope of discovery is generally confined to the common issues certified by the court.
Canada
Answer ... Generally, leave of the court must be obtained in order to discover third parties or class members beyond the proposed class representative. As it relates to class members, applications for leave typically take place after discovery of the representative has been completed, in order to be able to demonstrate that an additional examination is necessary. There are a number of factors that a court will consider in determining whether discover of third-party class members is warranted, including:
- the stage of the proceedings; and
- the value of the individual claims.
The rules regarding third-party disclosure in normal civil actions generally apply in the context of class actions. Typically, a party must seek permission from a court to obtain the production of documents or examination for discovery from a person that is not a party to the action. Canadian courts are generally reluctant to order third-party discovery.
Canada
Answer ... The law of privilege in Canada is nuanced. As a general rule, parties are not required to disclose privileged documents during litigation, including class action litigation. There are many types of privilege – the most well-known being litigation privilege and solicitor-client privilege. Litigation privilege creates a zone of privacy in relation to communications around the defence or prosecution of litigation; and solicitor-client privilege protects from disclosure the direct communications – both oral and written – prepared by a lawyer or client in connection with the provision of legal advice.
Canada
Answer ... In the context of a class action, the determination of when the solicitor-client relationship arises for plaintiffs, and hence the scope of privilege, can be more complex. Generally, no solicitor-client relationship exists between class counsel and potential class members before certification. Once a class action is certified, counsel represent the class and a solicitor-client relationship exists. In Ontario, courts have held that third-party funding agreements for class actions are not privileged documents.