D. Royal

The plaintiff in a class action regarding alleged over-recovery of fuel surcharges by the defendant railway company brought a motion for documentary production and to compel answers to questions refused on cross-examination.

The defendant had brought a motion for summary judgment based on narrow legal grounds, arguing that the Canada Transportation Act is a complete code and that the claims are statute-barred or disclose no cause of action.

The court dismissed the plaintiff's motions, finding that the requested production and answers related to the factual issue of over-recovery, which was irrelevant to the purely legal issues raised in the defendant's summary judgment motion.

The court also accepted the defendant's evidence that the specific data requested by the plaintiff did not exist and would require complex, arbitrary allocation to create.

In a proposed class action alleging a price‑fixing conspiracy in the optical disc drive (ODD) market contrary to common law and s. 45 of the Competition Act, the plaintiff sought leave to amend the claim to add eighteen additional corporate defendants.

The defendants opposed the amendment on the basis that limitation periods under the Limitations Act and s. 36(4) of the Competition Act had expired.

The court held that at the pleadings amendment stage it was inappropriate to make definitive findings on discoverability or the expiry of limitation periods where the evidentiary record was incomplete.

Although the plaintiff’s evidence regarding due diligence was thin, the court concluded it would be unfair to refuse the amendment solely on the deficient record.

The motion was adjourned to permit the plaintiff to file additional evidence addressing discoverability and diligence.