Ontario Court Bifurcates Class Action As Practical Approach To Onerous Discovery Demands

Proportionality concerns in class actions may lead to creative approaches to discovery and prosecution of a case. Given onerous documentary production requests and efficiency considerations, in Robson v. Federal Express Canada Corp., 2026 ONSC 5467, Justice Morgan granted the defendants' motion to bifurcate the liability and damages stages of a class action, including the corresponding documentary production and pre-trial discoveries.

The plaintiff in Robson alleges C$500 million in compensatory damages because the defendants allegedly charged retail customers hidden or confusing fees on their shipments, in breach of certain provisions of the Consumer Protection Act, 2002, S.O. 2002, c. 30 (CPA). The plaintiff's proposed discovery plan sought extensive documentary disclosure from the defendants, including documents created over approximately a decade. To respond, the defendants would have had to review documentation pertaining to some 4.8 million discrete transactions from the class