Et Tu, Nova Scotia? Another Court Distances Itself From B.C.'S Broad Approach To Discovery

The B.C. Court of Appeal increasingly stands alone in refusing to limit the scope of discovery in class actions to the common issues. A closer look, however, reveals that the difference may be more rhetorical than real.

Two years ago, in June 2013, the B.C. Court of Appeal upheld the B.C. Supreme Court's ruling in Stanway v. Wyeth Canada Inc. that the scope of discovery in class actions is not limited by the common issues.^[1] The court held that the usual rule—relevance and materiality, as defined by the pleadings—applies.

By contrast, in Ontario and Alberta—and now in Nova Scotia—the scope of discovery is generally restricted to the common issues.

As early as 2003, the Ontario Superior Court held in 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada that it is the certification order, and not the pleadings, that define relevance.^[2] The court has affirmed this approach on many occasions, most recently in Fischer v. IG Investment Management Ltd.,