Court File and Parties

CITATION: Baroch v. Canada Cartage Diversified GP Inc., 2016 ONSC 5757

DIVISIONAL COURT FILE NO.: 235/16

DATE: 20160920

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Marc-Oliver Baroch, Respondent/Plaintiff

AND:

Canada Cartage Diversified GP Inc., Direct General Partner Corporation and Canada Cartage System, Limited, Moving Parties/Defendants

BEFORE: Dambrot J.

COUNSEL: Eric R. Hoaken, Ian C. Matthews and Lisa Lutwak, for the Respondent/Plaintiff

Linda Plumpton, Sylvie Rodrigue, Lisa Talbot and Sarah Whitmore, for the Moving Parties/Defendants

HEARD at Toronto: In writing

ENDORSEMENT

[1] The moving parties (defendants in the action that gives rise to the motion before me) seek leave to appeal from the order of Belobaba J., dated April 27, 2016, granting the plaintiff’s motion for approval of his discovery plan in part.

Background

[2] The motion before me arises in the context of a class proceeding commenced by the plaintiff against the defendants for unpaid overtime compensation. The case was certified as a class proceeding by Belobaba J. on January 30, 2015, on the basis that the claim was framed as a complaint about the systemic policies or practices of the defendant employer. As Belobaba J. explained, the class has been defined to assume overtime eligibility. The class definition makes clear that eligibility determinations and individual assessments are not in issue.

[3] The parties were unable to agree on a discovery plan. As a result, Belobaba J. heard a discovery plan motion and issued two-page order which he entitled Directions re Discovery Plan on April 27, 2016. At the motion, the defendants argued that a number of categories of documents sought by the plaintiff, including some relating to individual entitlements and individual manager and terminal practices, were not relevant to the common issues and should not be ordered to be produced. In his order, Belobaba J. listed nine discovery issues that were in dispute and provided a one-sentence resolution of each of these issues. Several of these issues dealt with the defendants’ arguments regarding the scope of disclosure. In those instances, Belobaba J. gave very brief, point-form descriptions of what he considered to be relevant. For example, he said, “Scope of relevance given that P’s case is framed as systemic not individual: What was said by or to individual class members re overtime pay may be relevant to CI’s especially the systemic allegations (policies or practices; no policies in place etc)” and “Communications to and from D’s managerial employees re overtime pay: Are relevant and should be produced.”

[4] Belobaba J. went on to say that if further explanation of his conclusions regarding relevance were required, he agreed with the analysis in a chart prepared by the plaintiff, with two exceptions, which he specified. This chart provides slightly more detailed explanations of the relevance of various categories of evidence. For example, with respect to the above-mentioned dispute about “Communications to and from D’s managerial employees re overtime pay” the explanation in the chart is that “These documents may, among other things, be probative of the implementation of the alleged policy or practice of avoiding or disregarding class members’ overtime obligations.”

Test for Leave to Appeal

[5] The two grounds on which leave to appeal from a judge’s interlocutory order may be granted are set out in Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which reads:

Grounds on Which Leave May Be Granted

(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[6] It is well settled that leave should not be easily granted and that the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test, and in each case, both aspects of the two-part test must be met before leave is granted (see Patrong v. Banks, 2015 ONSC 6167, [2015] O.J. No. 5123 (Div. Ct.), at para. 8; Rahimi v. SouthGobi Resources Ltd., 2016 ONSC 1634, [2016] O.J. No. 2637 (Div. Ct.), at para. 7; Bennett v. Bennett Environmental, 2016 ONSC 3740, [2016] O.J. No. 2961, at para. 7; Leggat v. Direct Leverage Limited, 2016 ONSC 4077, [2016] O.J. No. 3222 (Div. Ct.) at para. 3).

[7] The defendants in the present case rely solely on the branch of the test in Rule 62.02(4)(a), which requires a moving party to establish that the decision from which leave to appeal is sought conflicts with a decision of another judge or court in Ontario or elsewhere, and to satisfy the judge hearing the motion for leave that it is “desirable that leave to appeal be granted.”

Analysis

[8] The defendants argue that leave to appeal should be granted because Belobaba J.’s order conflicts with “well-established” principles regarding relevance in the context of class actions and that it is desirable that leave be granted where, as here, legal analyses conducted by two or more courts with respect to the same factual landscape are in conflict and the issue could benefit from appellate clarification.

[9] I am unable to accept the argument advanced by the defendants.

[10] The principles regarding relevance are well known and uncontentious. Evidence is relevant if it is offered to help to prove a matter in issue (materiality) and if it tends to establish that matter as a matter of human experience and logic (probative value). The test of relevance is neither exacting nor a high threshold. The fact that the evidence offered may be equivocal does not mean that it is not relevant. And of course, in the context of discovery, the test of relevance must be applied prospectively. Having regard to these principles, I see no basis to doubt the correctness of the decision of Belobaba J. in respect of relevance. The fact that eligibility determinations and individual assessments are not themselves in issue in this case does not mean that evidence relating to individual entitlements and individual manager and terminal practices is not relevant to the proof of what is in issue: the existence of systemic policies or practices of the defendants resulting in unpaid overtime compensation.

[11] It is hardly surprising that apparently different rulings on relevance may have been made in cases involving other systemic complaints. The determination of relevance is case specific. Each case turns on the particular allegations made in a particular context and concerns particular facts and particular evidence. Seemingly different results do not necessarily reflect inconsistent application of the principles of relevance. I find it to be a doubtful proposition that legal analyses conducted by two or more courts with respect to factual landscapes that bear some superficial similarity could be seen to be in conflict. I find the proposition startling where, as here, it is based on a few stray points from Belobaba J.’s statements cross-referenced to the plaintiff’s chart in a short direction on discovery compared to other rulings on relevance in other cases by other judges.

[12] Given how well the meaning of relevance is understood, I find equally startling the proposition that any alleged differences in principle between what might be extracted from a close reading of the plaintiff’s chart in this case, on the one hand, and what has been said by other judges in other cases, on the other hand, could benefit from appellate review.

[13] In short, the defendants’ argument fails to persuade me that it is desirable that leave be granted.

[14] If my analysis leaves the impression that I am refusing leave because Belobaba J.’s order is short and does not contain a full analysis, I want to make clear that I would not likely have reached a different conclusion had it been longer. At the same time, I do not regret that the brevity of the order issued by Belobaba J. militates against the granting of leave. His decision is rooted in his experience deciding class action cases and his intimate familiarity with this case in particular. He has case managed the proceeding since November 2013. He has presided over four contested motions. He has a detailed knowledge of the claim, and should not be called on to demonstrate his depth of understanding of the matter at every turn. His decision is entitled to considerable deference.

[15] In the plaintiff’s factum, the following is said:

Discovery plans are meant to expedite and facilitate the discovery process through cooperation. Canada Cartage’s motion for leave to appeal the discovery plan decision unnecessarily prolongs the discovery process and adds costs. Put simply, this motion is “sideshow litigation” that should not be permitted by this Court.

[16] I agree.

Disposition

[17] The motion for leave to appeal is dismissed.

[18] The parties provided the court with their cost outlines. The defendants calculated their partial indemnity costs at $22,992.79. The plaintiff sought partial indemnity costs in the amount of $34,486.27. In all of the circumstances, I award costs in the amount of $25,000 all-inclusive to the plaintiff, payable forthwith.

M. DAMBROT J.

Date: September 20, 2016