Jennifer Roberts-Logan

The appellants appealed an order refusing to enjoin the respondents from pursuing a motion in the United States to access testimony and documents obtained through the US discovery process.

The Court of Appeal dismissed the appeal, finding no comity concerns or overriding policy issues that would warrant an injunction.

The Court held that the respondents were legitimately attempting to gather evidence in a foreign jurisdiction according to its rules, and that the US judge was in the best position to determine whether and how to vary the protective order.

The defendants appealed an order dismissing their motion to enjoin the plaintiffs from seeking access to discovery evidence in parallel U.S. anti-trust litigation.

The defendants argued that the plaintiffs were attempting to circumvent Ontario's discovery rules by obtaining discovery in the U.S. before certification of the class action.

The Divisional Court dismissed the appeal, finding that the plaintiffs were merely seeking passive access to evidence already discovered in the U.S. litigation, rather than actively conducting discovery.

The court held that such evidence gathering does not offend Ontario's discovery rules or the implied undertaking rule, and that the U.S. court should determine whether to grant access under its own protective order.