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ARTICLE · 23 FEBRUARY 2024

Discoverability, Deference, And Di Filippo

Lerners LLP
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The debate over discoverability, and the deference owed to findings of discoverability, continues with the Court of Appeal for Ontairo's decision in Di Filippo v. Bank of Nova Scotia, 2024 ONCA 33.

CanadaLitigation, Mediation & Arbitration
Gregory Cherniak
Gregory Cherniak
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The debate over discoverability, and the deference owed to findings of discoverability, continues with the Court of Appeal for Ontairo's decision in Di Filippo v. Bank of Nova Scotia, 2024 ONCA 33.

In this class proceeding, the plaintiffs sought to amend their pleadings to add new defendants and amend existing claims against a number of large global financial institutions for alleged conspiracies to fix the price of gold and silver. The class proceeding case management judge, also the motion judge, dismissed the motion on the basis that the fresh claims were statute-barred.

Justice Feldman allowed the appeal, with reasons agreed to by Justice Paciocco, and overturned the motion judge – determining that the motion judge had misapplied the test for discoverability. Interestingly, Huscroft J.A. dissented on the issue of three banks that were added as defendants. Justice Huscroft wrote that the discoverability analysis was a mixed question of fact and law, which was

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