Court File and Parties

Court File No.: CV-08-CV353663-00CP
Date: 2025-03-28
Court: Superior Court of Justice - Ontario

Between:
Rizwan Juma and Nasrin Juma, Plaintiffs
– and –
Western Union Financial Services (Canada) Inc. o/a Western Union, Defendant

Before: Justice E.M. Morgan

Counsel:
Nancy Tourgis and David Fogel, for the Plaintiffs
Eric Leinveer and Alexandra Psellas, for the Defendant

Heard: March 27, 2025

Endorsement

[1] This is a certified class action. At discovery, the representative Plaintiff, Rizwan Juma, refused a number of questions. Two of them remain outstanding and are the subject of this motion.

[2] The refused questions are:

(a) To produce facts and evidence from class members in the possession of class counsel, regardless of whether they are going to be called as a witness at trial.

(b) To advise whether Plaintiffs’ counsel have spoken to any of the collectors or brokers.

[3] The Plaintiffs have claimed against Western Union for, among other things, knowing assistance of breach of trust, knowing receipt of trust funds, negligence, and/or vicarious liability, in relation to payments made by class members that were ultimately provided (often through one or more intermediaries) to Salim Damji, who was convicted of fraud. Damji often relied on representatives or brokers (also known as “collectors”) to gather money for him.

[4] Counsel for Western Union explain that the refusals relate to facts and information from other class members in the possession of class counsel relating to the nature and circumstances of the payments to Damji and the class members’ understanding of the payments. They submit that this information is relevant to their defense of the claim, and that, despite seeking information in the possession of class counsel, is not covered by privilege.

[5] Class counsel take the position that the information sought by the Defendant is not only protected under solicitor-client privilege and/or litigation privilege, but is contrary to the proportionality rule. As they describe it, the Defendant’s quest for information regarding the class members and their investment in the fraudulent scheme at issue in the action imposes on the Plaintiffs and class counsel an enormously large and burdensome task of minimal relevance to the claim.

[6] Question (a) above is worded so broadly and vaguely that it is almost a parody of a discovery question. When I pointed out to counsel at the hearing that everyone would refuse to answer a question that asked for nothing less than “facts and evidence” from class members without any further specificity, counsel explained that in the context of the examination the question was limited to facts and evidence relating to the claim as pleaded. He then added that, in any case, the Defendants were only seeking facts and evidence in the hands of class counsel.

[7] Neither of those two qualifiers helps the Defendant’s cause in this motion. When I pressed the question as to exactly what kind of facts and evidence the Defendant wanted – e.g. just facts relating to whether each class member’s investment was direct or through an intermediary, or whether it also included how the investment decision came about, how the class member analyzed the investment, or financed the investment, etc. – Defendant’s counsel was unable to be more specific. He submitted that the Defendant has a right to know any class member’s motives in investing, how they heard about the investment, how they sized it up, what they hoped to gain, and on and on.

[8] In other words, what the Defendant is seeking is, in the guise of a discovery question posed to the representative Plaintiff, is full discovery of every class member, as if every class member were a personal plaintiff in the action. It was made clear to me by counsel’s explanation that what the Defendant expected was to be advised, through the representative Plaintiff, of all of the information that they would elicit were they to have a right to directly discover every class member.

[9] This version of discovery would effectively undermine the goals of class proceedings. The access to justice and judicial economy which class actions aim to foster would not exist, as the discovery process would effectively treat the class action as a mass tort, with each class member named as a co-plaintiff.

[10] In response to this critique, Defendant’s counsel submits that this is a special case, since each class member likely experienced the fraud differently and it is important to the defense to have that information. In order to understand this point, however, it is important to note that at issue is post-certification discovery. In other words, the issue of commonality has already been determined.

[11] In addition, I pointed out to counsel at the hearing that this does not seem to be such a special case at all. The subjective experiences of class members are always varied, but what is at issue in a class action are the matters that they do have in common. For example, if an automobile manufacturer puts out a model with defective transmissions, each class member may well have purchased their car for different reasons, have seen different advertisements, been spoken to by a different sales person, financed the purchase differently, had different repair costs, had transmission failure at different times, etc. Those subjective differences may become an issue following trial at the stage of individual compensation claims, but they do not lead to pre-trial discovery of the entire class.

[12] In an attempt to narrow the ambit of the question, counsel for the Defendant explained that they do not seek to hear from every class member. Rather, they seek to get the information from class counsel. Accordingly, the new way they have posed the question is to limit the information sought to that which is already “in the possession of class counsel.” Practically, what that means is that they want to know the content of all conversations that class counsel has had with class members.

[13] Class counsel are of the view that factual information about any class member’s investment cannot be separated from legal advice about any class member’s investment. I agree that that is a nearly impossible task. Potential class members contact class counsel for the most part to determine whether they are in the class and covered by the claim. The factual inquiries and probing that counsel make in discussing that with each person is part and parcel of the legal analysis and advice in which counsel engage in those conversations.

[14] Moreover, I am of the view that since the Defendant does not get to examine each class member for discovery, and cannot do so through the guise of asking the representative Plaintiff to produce the information from class members, it also cannot do so through the guise of asking class counsel to relay their conversations with class members. That, in effect, would be to grant the Defendant discovery of the lawyers – a process which the discovery rules do not embrace. The Defendant cannot ask each class member why or how they invested in the fraudulent scheme; and the Defendant likewise cannot ask class counsel to relay what they know about why each class member invested in the fraudulent scheme.

[15] In short, question (a) is excessively broad. It seeks discovery of non-parties – i.e. class members – in a context where that is not warranted. It also treads on both solicitor-client privilege and litigation privilege in seeking to have class counsel answer the question for itself. Moreover, it imposes a burden on class counsel to review every conversation it has had with every class member who has contacted them in the now 17 years since the inception of the action. That task is clearly disproportionate to anything of relevance in the Defendant’s question.

[16] Question (b) posed by Defendant’s counsel does not take much analysis to address. It is difficult to see its relevance to the matters at issue and, in addition, it bumps up against litigation privilege.

[17] It is entirely unclear to me what difference it makes as to which collectors or brokers class counsel has spoken with. Some may have relevant information and some may not, but the existence and availability of that information does not turn on whether they have spoken with class counsel. The Plaintiffs will have to follow the Rules and produce a gist or willsay statement of any broker or collector they intend to call at trial. Beyond that, the question of whether class counsel has been in touch with brokers, collectors, or anyone else in the world, has no bearing on the issues at trial.

Disposition

[18] The Defendant’s motion is dismissed.

Costs

[19] Counsel for the Plaintiff seeks $10,000 in costs for the motion. Counsel for the Defendants has submitted a Costs Outline in which it would seek just over $37,300 on a partial indemnity basis.

[20] Rule 57.01(1)(0.a) provides that the principle of indemnity for the successful party is to govern the award of costs. That principle is then tempered by the guidance in Rule 57.01(1)(0.b) that the amount sought by the successful party should not take the unsuccessful party by surprise. Given the disparity in the amount of costs sought by the parties here, the only surprise that the Defendant might experience is the pleasant one that the Plaintiff’s request is substantially lower than its own.

[21] Defendant’s counsel submit that there should be no costs to the Plaintiff regardless of the outcome of the motion. The reason for this is that the Plaintiffs have a history of missing timetable deadlines and during the discovery process have generally been uncooperative in answering undertakings and refusals.

[22] I encourage cooperation among counsel in completing discoveries and generally in moving the matter ahead. That said, I am not inclined to review the procedural history of this motion with a view to punishing one party or another for what strikes me as an unproductive dispute between lawyers. The Defendant brought a motion and has lost it on its merits. The successful party deserves its costs.

[23] The Defendant shall pay the Plaintiffs costs in the all-inclusive amount of $10,000 for the motion, payable within 30 days of today.

Date: March 28, 2025
E.M. Morgan