A. Introduction

[1] In this certified class action, during his examination for discovery for the common issues trial, the Representative Plaintiff, Jeffrey Lipson, purporting to rely on the general rule that governs discoveries in proceedings under the Class Proceedings Act, 1992,[^1]has refused to answer questions that he submits are relevant only to the individual issues stage of the action.

[2] The Defendant, Cassels Brock & Blackwell, LLP, moves for answers to the refused questions. Cassels Brock submits that Mr. Lipson misapplied the current general rule that governs the examination of the Representative Plaintiff and that he was not entitled to refuse to answer the questions. Cassels Brock submits further that the refused questions were relevant to the common issues trial and should have been answered. Further still, Cassels Brock submits that Mr. Lipson’s wrongful refusals produced an examination for discovery that was inadequate, unfair, and unbalanced. Cassel Brock’s asks that Mr. Lipson be ordered to re-attend to continue and complete his examination for discovery.

[3] Cassel Brock’s refusals motion raises the important issue about whether the rules and guidelines that govern examinations for discovery of a representative plaintiff in a class proceeding should be revisited and rearticulated.

[4] As I shall explain below, the current general rule that governs the examination of a representative plaintiff does need to be revisited and rearticulated with more precision. In my opinion, the general rule is and should be that the representative plaintiff is subject to the same discovery obligations as any plaintiff in a normal proceeding, but the representative plaintiff may answer or refuse to answer questions that are relevant only to other Class Members’ discrete individual issues.

[5] In any event, applying either articulation of the rule for examinations for discovery in a class proceeding, Mr. Lipson’s refusals were improper, and I, therefore, grant Cassels Brock’s motion.

B. Factual Background

1. The Parties

[6] Jeffrey Lipson is a wealthy retired businessman living in Toronto, Ontario.

[7] Cassels Brock & Blackwell LLP is a full-service law firm carrying on business in Toronto as a limited liability partnership. In 2000, Lorne Saltman, a tax lawyer, was a partner of the firm.

[8] Cassels Brock has an Ethics and Standards Committee that provides the members of the law firm with advice to resolve client conflict of interest issues, confidentiality screens, ethical issues, standards of practice and matters of professionalism. In 2008, the Ethics and Standards Committee was renamed the Risk Management Committee, and, subsequently, it was renamed the Audit & Risk Management Committee.

[9] The members of the Ethics and Standards Committee are involved in the law firm’s management and provide internal legal and strategic advice with respect to issues within the professionalism mandate of the Ethics and Standards Committee.

2. The Timeshare Donation Program and Cassels Brock’s Opinion

[10] Around 2000, Stephen Elliott and Steven Mintz approached the accounting firm, Mintz & Partners with the idea of a Timeshare Program that would provide tax benefits to participants. Steven Mintz’s brother was a partner of the accounting firm.

[11] In 2000, Messrs. Elliot and Mintz retained Cassels Brock to provide Canadian Athletic Advisors with a legal opinion about the tax consequences under the Income Tax Act of participating in a Timeshare Donation Program.

[12] Mr. Saltman prepared the opinion for Canadian Athletic Advisors, and in the following years, Cassels Brock prepared more legal opinions for Canadian Athletic Advisors about the Timeshare Program. There are six opinions. The opinions are substantially the same.

[13] Thus, on October 6, 2000, May 18, 2001, September 7, 2001, May 13, 2002, November 8, 2002 and April 8, 2003, Cassels Brock provided Canadian Athletic Advisors with a legal opinion letter with respect to the Timeshare Program. The Cassels Brock opinion was that it was unlikely that the Canada Customs and Revenue Agency could successfully deny the tax credits.

[14] In the marketing of the Timeshare Program, the tax opinions prepared by Cassels Brock were included in the promotional material.

[15] Between 2000 to 2003, the Representative Plaintiff, Jeffrey Lipson, and about 900 other Canadian taxpayers participated in the Timeshare Program in which they donated both cash and also resort timeshares to Canadian athletic associations. Mr. Lipson and the donors anticipated receiving tax credits for their charitable donations.

[16] Mr. Lipson did not read the Cassels Brock opinion, but he participated in the Timeshare Programs. For 2000, he claimed tax credits of $634,352. For 2001, he claimed credits of $1,261,988. For 2002, he claimed credits of $2,085,835. For 2003, he claimed credits of $1,148,879.60.

[17] Mr. Lipson says that he and the other participants would not have participated in the program but for the opinion of a reputable law firm that the charitable tax credits under the Income Tax Act would be available.

[18] In 2004, Canada Revenue disallowed the anticipated tax credits in their entirety.

[19] In 2004 and 2005, Mr. Lipson and other participants sought advice from Thornsteinssons LLP, a law firm that specializes in tax litigation, and in 2006, some of the participants commenced litigation against Canada Revenue as test cases to determine the availability of the tax credits for the donations.

[20] In March 2008, Mr. Mintz spoke to Mr. Saltman about the litigation in the Tax Court. Mr. Mintz said that he and other participants in the Timeshare Program had received advice from Thorsteinssons LLP. He sent Mr. Saltman Thorsteinssons LLP’s letter of November 20, 2007 which, among other things, detailed Thorsteinssons LLP’s legal opinion about the Timeshare Program.

[21] In 2008, the test case litigation settled, and Canada Revenue allowed the participants to receive a tax credit for the cash portion of the donation. Mr. Lipson and the other participants in the Timeshare Program, however, were denied the greater part of their anticipated tax credit based on the value of the donated timeshares.

3. The Class Action

[22] In 2009, to recover his losses, Mr. Lipson commenced this class action against Cassels Brock for damages for negligence and negligent misrepresentation. Mr. Lipson alleges that Cassels Brock breached the standard of care of reasonably competent tax lawyers by endorsing the Program in 2000 to 2003. The Amended Statement of Claim pleads that there was an undisclosed joint retainer and conflict issues that affected Cassel Brock’s duty of care. In Mr. Lipson’s action, a core allegation against Cassels Brock is that it failed to consider whether Canada Revenue would consider the conveyance of timeshares a gift in accordance with the Income Tax Act jurisprudence.

[23] It is worth keeping in mind that Mr. Lipson’s action is not a run-of-the-mill professional negligence action because the Class Members were not clients of the law firm and rather had other professional advisers.

[24] Cassels Brock brought third party claims against Mintz & Partners LLP, Deloitte & Touche LLP, Glenn F. Ploughman, Shelley Shifman, Prenick Langer LLP, TMK Financial Group Ltd., Gardiner Roberts LLP, the Estate of Ronald J. Farano, deceased, John Doe 1-100, John Doe Inc. 1-100, John Doe Partnership 1-100, John Doe LLP 1-100. These third parties were involved in the promotion and marketing of the Timeshare Program.

[25] Mr. Lipson moved to certify his action as a class proceeding under the Class Proceedings Act, 1992, and in November 2011, I ruled that the action was certifiable but that it was statute-barred by the two-year limitation period set out in the Limitations Act, 2002.[^2]

[26] On March 19, 2013, the Court of Appeal for Ontario reversed my decision about whether the action was statute-barred leaving that issue to be determined in the cause.[^3] The Court of Appeal added additional common issues and allowed the action to continue.

[27] The certified common issues are:[^4]

Negligence

(1) Did the defendant owe the class a duty of care (in among other things, negligence or negligent misrepresentation) in the preparation of the legal opinions?

(2) If the answer to common issue 1 is yes, what is the content of the standard(s) of care?

(3) Did the defendant breach the foregoing standard(s) of care? If so, how?

(4) If the answer to common issue 3 is yes, did the defendant's breach of the foregoing standard(s) of care cause or materially contribute to the damages of the class members?

Damages & Other Relief

(5) If after an individual issues trial, the defendant were found liable to a Class Member for negligent misrepresentation or negligence, what types or heads of damages, if any, would the Class Members be entitled to?

(6) If after an individual issues trial, the defendant were found liable to a Class Member for negligent misrepresentation or negligence what remedy or remedies, if any, would the Class Members be entitled to?

[28] Cassels Brock and Third Parties have defended the action on numerous bases. Among other things, Cassels Brock has pleaded that: (a) it did not owe a duty of care to Mr. Lipson or other Class Members; (b) Mr. Lipson did not read or rely upon the legal opinions of Cassels Brock; (c) Mr. Lipson and other Class Members obtained independent legal and accounting advice from others before participating in the Timeshare Program; (d) the legal opinions and conduct of Cassels Brock met the standard of care; (e) neither Mr. Lipson nor other Class Members suffered any damages; (e) to the extent that Mr. Lipson suffered any damages, he failed to mitigate those damages; and (f) the action is statute-barred pursuant to the Limitations Act, 2002 as Lipson knew or ought to have known of all claims asserted against Cassels Brock more than two years before the issuance of the Statement of Claim.

[29] The action proceeded in the discovery phase, and in October 2014, Cassels Brock and certain Third Parties brought a motion seeking a further and better affidavit of documents from Mr. Lipson. That motion was successful, and I ordered him to produce all relevant communications involving Thorsteinssons LLP and Class Members relating to the Timeshare Program, including but not limited to the file of Thorsteinssons LLP.

[30] On August 17, 2015, Mr. Lipson was examined for discovery. During his examination, he refused to answer questions with respect to: (a) legal advice that he received from his tax lawyer about his participation in the Timeshare Program; (b) accounting advice he received about his participation in the Timeshare Program; (c) whether he was advised of the potential of a tax reassessment; (d) written representations that he made to Canada Revenue in relation to the Timeshare Program; (e) whether he acted on advice received from Thorsteinssons LLP in relation to the Timeshare Program or why he settled with Canada Revenue; (f) the documents in Thorsteinssons LLP’s file; (g) his claim for damages; (h) his income tax returns for any years before 2000 or after 2003, which he refused to produce; and (i) particulars of Cassels Brock’s alleged negligence.

[31] On November 3, 2017 and on May 16, 2018, Mr. Lipson’s counsel delivered answers to undertakings and refusals from Mr. Lipson’s examination.

[32] Cassels Brock submits that Mr. Lipson improperly refused to answer proper questions that were related to the common issues.

[33] Further, Cassels Brock submits that: (a)although the refused questions were also related to the to individual issues, as a practical matter, it is not possible to separate the individual issues from the common issues; (b) Mr. Lipson’s overly formalistic approach ignores this reality; and (c)he should not be allowed to refuse to answer questions. To quote paragraphs 6 and 7 from Cassels Brock’s factum:

Experience shows that the evidence ultimately led at a common issues trial can never be fitted neatly into hermetically sealed common issues. It overlaps and expands as the trial, and preparation for it, contextualizes the evidence to be led and which is ultimately led. To deny the Defendant and Third Parties a meaningful discovery is to prejudice them at trial.
On the other hand, there is no overriding prejudice to the Plaintiff to give a meaningful discovery, as counsel for Cassels Brock recognized when giving just that latitude to the Plaintiff. If ultimately some of it may also relate to later trial stages there is no harm done here.

C. The Refused Questions

[34] The refused questions are set out in the charts below.

Refusal 1

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

22-26

7-8

Does the account from Gardiner Roberts found in Lipson’s income tax return for 2001 reflect advice that Lipson received from Gardiner Roberts with respect to a donation of art, in particular a reassessment in that respect?

October 3, 2017: The question is not relevant to the determination of the common issues.

Refusal 2

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

Did Lipson act on the letters and/or opinions provided to him by Thorsteinssons?

October 3, 2017: The question is not relevant to the determination of the common issues and is, in any event too vague and too general.

Refusal 3

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

62-63

16-17

Did Lipson hear anything from his advisors about any potential that he was going to be reassessed between the years 2000-2003, prior to when he first received documents from CRA?

October 3, 2017: The question is not relevant to the determination of the common issues.

Refusal 4

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

Did Lipson work with the Prenick Langer firm on any documents that he sent to CRA in response to any inquiries made of him by CRA?

October 3, 2017: The question is not relevant to the determination of the common issues.

Refusal 5

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

Why did Lipson settle the issues with CRA?

October 3, 2017: The question is not relevant to the determination of the common issues.

Refusal 6

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

To produce Lipson’s income tax returns for the years 1997 through 1999, and 2005 through 2009.

October 3, 2017: The question is not relevant to the determination of the common issues.

Refusal 7

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

100

Did Lipson claim any legal expenses in the years subsequent to 2004 for any assistance that he received with respect to the timeshare donation program?

October 3, 2017: The question is not relevant to the determination of the common issues.

If the question is relevant to the Plaintiff’s individual damage calculation that information will be provided, if necessary, at the individual assessment stage of this proceeding.

Refusal 8

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

142

33-34

Does Lipson accept as accurate the discussion of the state of the law at the time the donation was made and thereafter in the second paragraph of the second page of the letter from Thorsteinssons dated November 20, 2007?

October 3, 2017: See numbered paragraph of Adam Dewar’s letter to Peter Griffin dated August 20, 2015: “Position on Thorsteinssons’ Opinions – you posed a number of questions regarding whether Mr. Lipson agreed with certain statements in Thorsteinssons’ opinion on the state of the law. As we advised, if Thorsteinssons’ view does prove to be relevant, we expect that those issues will also be addressed by our expert. If they are not, we will advise of the plaintiff’s position following service of our experts report.”

Refusal 9

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

149

Does Lipson have any basis to challenge the view of Thorsteinssons expressed in 2007 at this time?

October 3, 2017: See answer to question 142 above.

Refusal 10

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

173-174

Does Lipson’s counsel know if other class members are aware that Mr. Farano wrote an opinion in December 2000 concerning the timeshare donation program?

October 3, 2017: The question is not relevant to the determination of the common issues.

Refusal 11

R #

Q #

P #

SPECIFIC QUESTION

RESPONSE BY LIPSON

198-199

45-46

With respect to Lipson production 184, an email from Matthew Williams to John McIntye of Thorsteinssons, is the sentiment expressed in the second paragraph in the email beginning with the words “At that time…” consistent with Lipson’s understanding at the time the appeal test case was ongoing?

October 3, 2017: It is expected that this issue will be addresses, if necessary, by the Plaintiff’s expert(s). If it is not, the Plaintiff will advise of his position following service of the expert(s) report(s).

D. Discussion and Analysis

[35] Sections 15, 16, 25, 27 and 35 of the Class Proceedings Act, 1992 are relevant to a discussion of the scope of examinations for discovery of a representative plaintiff in a certified class action. Those sections state:

Discovery

Discovery of parties

(1) Parties to a class proceeding have the same rights of discovery under the rules of court against one another as they would have in any other proceeding.

Discovery of class members with leave

(2) After discovery of the representative party, a party may move for discovery under the rules of court against other class members.

Idem

(3) In deciding whether to grant leave to discover other class members, the court shall consider,

(a) the stage of the class proceeding and the issues to be determined at that stage;

(b) the presence of subclasses;

(d) the approximate monetary value of individual claims, if any;

(e) whether discovery would result in oppression or in undue annoyance, burden or expense for the class members sought to be discovered; and

(f) any other matter the court considers relevant.

Idem

(4) A class member is subject to the same sanctions under the rules of court as a party for failure to submit to discovery.

Examination of class members before a motion or application

(1) A party shall not require a class member other than a representative party to be examined as a witness before the hearing of a motion or application, except with leave of the court.

Idem

(2) Subsection 15 (3) applies with necessary modifications to a decision whether to grant leave under subsection (1).

Individual issues

(1) When the court determines common issues in favour of a class and considers that the participation of individual class members is required to determine individual issues, other than those that may be determined under section 24, the court may,

(a) determine the issues in further hearings presided over by the judge who determined the common issues or by another judge of the court;

(b) appoint one or more persons to conduct a reference under the rules of court and report back to the court; and

Directions as to procedure

(2) The court shall give any necessary directions relating to the procedures to be followed in conducting hearings, inquiries and determinations under subsection (1), including directions for the purpose of achieving procedural conformity.

Idem

(3) In giving directions under subsection (2), the court shall choose the least expensive and most expeditious method of determining the issues that is consistent with justice to class members and the parties and, in so doing, the court may,

(a) dispense with any procedural step that it considers unnecessary; and

(b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate. […]

Judgment on common issues

(1) A judgment on common issues of a class or subclass shall,

(a) set out the common issues;

(b) name or describe the class or subclass members;

(d) specify the relief granted.

Effect of judgment on common issues

(2) A judgment on common issues of a class or subclass does not bind,

(a) a person who has opted out of the class proceeding; or

(b) a party to the class proceeding in any subsequent proceeding between the party and a person mentioned in clause (a).

Idem

(3) A judgment on common issues of a class or subclass binds every class member who has not opted out of the class proceeding, but only to the extent that the judgment determines common issues that,

(a) are set out in the certification order;

(b) relate to claims or defences described in the certification order; and

Rules of court

The rules of court apply to class proceedings.

[36] The rights of discovery under the rules of court between the parties are set out in the Rules of Civil Procedure. The scope of an examination for discovery for plaintiffs and defendants in a normal action is set out in rule 31.06 (1) of the Rules of Civil Procedure, which states:

31.06 (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or

[37] Chapter 16 of the Ontario Law Reform Commission’s Report on Class Actions (1982), addressed the matter of examinations of discovery in a class proceeding. For present purposes with the footnotes omitted, the following excerpts about the examination of the representative plaintiff and of class members are relevant:

Common Proceedings

Insofar as discovery at the common questions stage of a class action is concerned, the Commission is of the opinion that the applicable provision in the Class Actions Act should implement three important principles.

First, we believe that the parties to class proceedings — the representative plaintiff and the defendant — should have the same rights of discovery against each other that are available in an ordinary action, and we so recommend.

This recommendation is but an articulation of the existing Ontario case law, which now permits discovery by and of the parties to a class action. In our opinion, the proposed Class Actions Act should contain an express provision to this effect in order to make it clear that this would continue to be the case under our revised class action procedure.

Secondly, it is our view that the defendant should not be entitled to discover class members other than the representative plaintiff except with the prior consent of the court. Consistent with the position taken by courts in the United States, and with the views of commentators who have considered this issue, we do not believe that it is justifiable to impose the inconvenience and expense of discovery on absent class members when the needs of the defendant can be met by discovery of the class representative. Both before certification and prior to the trial of the common questions, it is probable that the class plaintiff will be in possession or control of the information relevant to the issues in dispute at the particular stage of the proceedings, and it is to him that the defendant should be obliged to look. If, however, discovery of the representative plaintiff proves to be inadequate, the defendant should be able to apply to the court for permission to examine or discover other class members.

Accordingly, we recommend that the proposed Class Actions Act should provide that, before the questions common to the class are decided, a defendant should be able to apply to the court to discover members of the class other than the representative plaintiff, but only after he has discovered the representative plaintiff. Similarly, we recommend that a defendant should not be able by subpoena to require a member of the class other than the representative plaintiff to attend to be examined for the purpose of using his evidence on any motion or application except by leave of the court, and following examination of the class plaintiff. It should be noted that this latter recommendation would apply not only to the certification motion, but to any motion or application brought during the course of a class action.

Thirdly, the Commission has concluded that the proposed Class Actions Act should contain a non-exhaustive list of factors designed to assist the court in deciding whether to allow discovery or examination of absent class members. Accordingly, we recommend that the court, in deciding whether to allow the defendant to examine or discover class members other than the representative plaintiff, should be required to consider all relevant factors, including the following four: the stage of the class proceedings and the issues to be determined thereat; whether discovery or examination is necessary for the purposes of the defence on the issues; where monetary relief is claimed, the approximate monetary value of the individual claims; and whether discovery or examination will result in oppression, undue annoyance, burden, or expense for the members of the class. 67

The first two factors that we recommend a court should be required to consider are intended to ensure that the court takes into account the need of the defendant for information from absent class members at the particular stage of the proceedings. The third and fourth factors would direct the court's attention to the question whether discovery of absent class members would be appropriate in the circumstances of a particular case. While we recognize that some cost and inconvenience inevitably will inhere in discovery, we believe that, where the claims are small or the burdens imposed upon individual class members would be inordinate, discovery should be denied.

It should be emphasized, however, that, in recommending consideration of the third and fourth factors, we do not mean to preclude discovery of absent class members by the defendant in all cases where individual claims are small. By including in the fourth factor the qualifying adjective "undue", we intend that the court should balance the inconvenience to class members against the need of the defendant. The facts and issues in a particular class action may persuade a court that discovery of some class members does not constitute an "undue" burden or expense, notwithstanding the fact that their claims are for small amounts. For example, where the defendant may be exposed to an enormous liability based upon the accumulation of individual claims, but is unable to obtain from the class representative information necessary to prepare his defence on the issue of liability, discovery of some class members should be permitted. In such a case, the burden imposed upon the class members would not be "undue", in light of the pressing need of the defendant for the information.

[38] In comparing s.15, 16, 25, 27, and 35 of the Class Proceedings Act, 1992 with the recommendations of the Ontario Law Reform Commission, it immediately becomes apparent that the Legislature agreed with and adopted the Commission’s recommendations that the defendant should have the same right of discovery against the representative plaintiff as available in an ordinary action but that the defendant should not have a right to discover a class member without leave of the court.

[39] For present purposes, sections 15 and 35 of the Class Proceedings Act, 1992 are of particular interest and importance because they suggest that insofar as the defendant and the representative plaintiff are concerned, the discovery is governed by the Rules of Civil Procedure (the rules of court) and that the defendant has the same right of discovery as he, she, or it would have in any other proceeding. Thus, pursuant to rule 31.06 (1), a defendant has the right to expect that the representative plaintiff examined for discovery should answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action.

[40] Reading all of the relevant sections of the of the Class Proceedings Act, 1992 suggests that insofar as the defendant and the representative plaintiff are concerned, while the representative plaintiff cannot be examined about the class member’s discrete individual issues, the representative plaintiff can be examined about his or her own individual issues because those individual issues would be a matter in issue in the action.

[41] Treating the case at bar as a matter of first instance (without the gloss of the case law, discussed below, about the scope of examinations for discovery in a certified class action), the above observations suggests that while Mr. Lipson could properly refuse answering questions about the individual issues of other class members, he ought to have answered questions that arose from the pleadings in his own case.

[42] In the immediate case, it is not as if the questions Mr. Lipson was asked were not relevant to the pleaded case; they arose directly from the pleadings in his case. And, it is not as if the refused questions would not have to be eventually answered; Mr. Lipson did not suggest that the questions were irrelevant; rather, he asserted that their answers should await a later stage of the proceeding.

[43] This approach is neither necessary nor efficient. While it is understandable that Mr. Lipson should not be questioned about the other class member’s individual cases, I see no reason why the common issues trial could not be dispositive of his case in its entirety. Assuming that Mr. Lipson succeeds at the common issues trial, as he hopes to do, his individual issues trial would and could follow and these questions would have to be answered. With success for the representative plaintiff at the common issues trial, the action would and could immediately move on to the individual issues stage for the representative plaintiff. This approach would be efficient and fair to both Mr. Lipson and to Cassels Brock and would not measurably increase the adjudicative work of the court at the common issues trial. This approach would also avoid the problem that arose in the immediate case because it would employ a refusal rule that is clearer and easier to apply because Mr. Lipson knows the details of his own idiosyncratic case but would have to inform himself about the circumstances of other class members.

[44] Moreover, in the immediate case, while the individual issues in Mr. Lipson’s case would not be binding on the other class members as a matter of issue estoppels, the resolution of Mr. Lipson’s individual issues could be helpful as a matter of precedent; i.e., as a matter of stare decisis. Assuming a successful outcome on the common issues, other class members would be informed about the merits of proceeding with their individual cases. In a sense, trying Mr. Lipson’s individual case at the common issues trial provides a test case for those class members similarly situated to Mr. Lipson.

[45] In other words, treating the case at bar as a case of first instance about the scope of discovery in a certified class action, I would interpret and apply the Class Proceedings Act, 1992, to posit the general rule that the representative plaintiff in a certified class proceeding is subject to the same discovery obligations as any plaintiff in a normal proceeding, but the representative plaintiff may answer or refuse to answer questions that are relevant only to other Class Member’s discrete individual issues.

[46] I wish to be clear that this is a general rule for cases in which the common issues trial will necessarily be followed by individual issues trial. I wish to emphasize that it is a general and not a categorical rule. There may be instances in which even exploring just the representative plaintiff’s individual issues will be unproductive but, in my opinion, the general rule should be that the representative plaintiff in a certified class proceeding is subject to the same discovery obligations as any plaintiff in a normal proceeding. Class actions are not monolithic and the interplay between common issues and the individual issues trials will vary and thus the general rule should not be treated as an absolute rule.

[47] Treating the case at bar as a matter of first instance, applying this general rule to the immediate case, Mr. Lipson’s refusals were improper. Therefore, he should reattend to answer the unanswered questions. And, because the initial examination for discovery was inadequate, Cassels Brock may recommence and complete Mr. Lipson’s examination.

[48] If I do not treat the case at bar as a case of first instance about the scope of the discovery of a representative plaintiff, the result would be the same.

[49] In class proceedings, the current general rule is that the examinations for discovery are restricted to just the issues that have been certified.[^5] However, this is not an absolute rule, and in an appropriate case other issues and not just those associated with the common issues may be the subject of discovery.[^6] There is no absolute rule because depending on the exigencies of the particular case restricting the defendant's discovery rights of the representative plaintiff may prejudice the defendant's rights and may not promote judicial economy.[^7]

[50] The current general rule is built on the notion that a class proceeding may be bifurcated and has two stages, the common issues stage and the individual issues stage, and, therefore, the certification order as informed by the pleadings and not the pleadings at large defines the scope of the examinations for discovery.[^8]

[51] In the immediate case, apart from the fact that the general rule is not an absolute rule, applying it to the circumstances of the case, I am satisfied that the questions that Mr. Lipson refused to answer were related to the issues that have been certified. In particular, the refused questions were relevant to the duty of care issue. As I noted at the outset, the case at bar is not a run-of-the-mill professional negligence action, where it is clear that there is a lawyer and client relationship and his individual circumstances are relevant to the ambit of the law firm’s duty of care and relationship in law with the class members. Thus, if I do not treat the case at bar as a case of first instance about the scope of the discovery of a representative plaintiff, the result would be the same because the refused questions are relevant to a central issue at the common issues trial.

[52] With respect to the existing case law about the scope of the discovery of the representative plaintiff, it should be noted that whatever or however way, a rule for the scope of the examination of a representative plaintiff is articulated, the common features must be: (a) although the representative plaintiff is a class member, he is subject to being examined without the leave of the court; (b) the questions he or she is asked must be relevant to the pleadings; (c) the questions must be relevant to the common issues, which feature adds little and actually subtracts or restricts the scope of the discovery because the common issues are, in any event, distillated from the pleadings; and (d) questions that are relevant to the individual issues may be asked if the questions are relevant to the common issues.

[53] Mr. Lipson, however, submits that the current case supports the proposition that questions that are exclusively related to the individual issues may be refused by the Representative Plaintiff. With one major qualification, I agree with Mr. Lipson’s interpretation of the current case law.

[54] The major qualification is that while the current case law supports the proposition that the general rule is that questions that are exclusively related to the individual issues of a class member may be refused by the representative plaintiff, it does not follow from the current case law that the representative plaintiff necessarily cannot be asked questions about his or her own individual case. Whether the representative plaintiff can be asked questions about his or her own individual action will depend upon the exigencies of the particular case.

[55] A restrictive approach to questioning the representative plaintiff does not follow in part because if the current rule is based on the notion that there are two separate stages of a class proceeding, insofar as the representative plaintiff is concerned, there is no reason to separate the two stages, and while the class members individual claims are necessarily bifurcated, there is no need to bifurcate the case of the representative plaintiff who is already before the court. Properly understood, it does not follow from the current case law that a representative plaintiff cannot be examined about his or her individual case, and, as noted above, the approach of examining the representative plaintiff can be efficient and productive because the representative plaintiff’s case will provide useful information for other class members.

[56] Once again, so understood, the general rule is not absolute because in a particular case there may be no utility and little to be gained by a comprehensive examination of the representative plaintiff. Some of the cases in which the current general rule has been applied are examples where as a stand-alone case there would have been justification for bifurcating the representative plaintiff’s case in any event. The case at bar is not such a case and there are efficiencies to be achieved by a comprehensive examination of Mr. Lipson within the normal ambits of a regular action.

[57] I, therefore, conclude that based on the current case law about the scope of the examination for discovery of a representative plaintiff or based on a re-articulation of the general rules, Mr. Lipson’s refusals were not justified and he should reattend to answer the unanswered questions and Cassels Brock may recommence and complete Mr. Lipson’s examination.

E. Conclusion

[58] For the above reasons, Cassels Brock’s motion is granted. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Cassel Brock’s submissions within twenty days of the release of these Reasons for Decision followed by Mr. Lipson’s submissions within a further twenty days.

Perell, J.

Released: September 24, 2019

COURT FILE NO.: CV-09-376511CP

DATE: 20190924

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JEFFERY LIPSON

Plaintiff

and -

CASSELS BROCK & BLACKWELL LLP

Defendant

REASONS FOR DECISION

PERELL J.

Released: September 24, 2019

[^1]: S.O. 1992, c. 6.

[^2]: Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724 var’d 2013 ONCA 165.

[^3]: Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165.

[^4]: Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724 var’d 2013 ONCA 165.

[^5]: 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp., 2012 ONSC 6549; Ramdath v. George Brown College of Applied Arts and Technology, 2012 ONSC 2747; Axiom Plastics Inc. v. E.O. Dupont Canada Company, 2011 ONSC 4510; Abdulrahin v. Air France, 2010 ONSC 3953; Andersen v. St. Jude Medical Inc., [2006] O.J. No. 3659 (Master), varied [2006] O.J. No. 5769 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, [2003] O.J. No. 5703 (Master).

[^6]: Axiom Plastics Inc. v. E.I. DuPont Canada Co., 2011 ONSC 4510; Pennyfeather v. Timminco Ltd., 2011 ONSC 4257; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2008 42422 (ON SC), [2008] O.J. No. 3304 (S.C.J.).

[^7]: Pennyfeather v. Timminco Ltd., 2011 ONSC 4257 at para. 35; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2008 42422 (ON SC), [2008] O.J. No. 3304 at paras. 54-57 (S.C.J.)

[^8]: 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, [2003] O.J. No. 5703 at para. 6 (Master).

Lipson v. Cassels Brock & Blackwell LLP, 2019 ONSC 5524

Case Summary

A. Introduction

B. Factual Background

1. The Parties

2. The Timeshare Donation Program and Cassels Brock’s Opinion

3. The Class Action

C. The Refused Questions

Refusal 1

Refusal 2

Refusal 3

Refusal 4

Refusal 5

Refusal 6

Refusal 7

Refusal 8

Refusal 9

Refusal 10

Refusal 11

D. Discussion and Analysis

E. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legislation 1