CANADA Law and Practice Contributed by: David Gadsden, John Pirie, Brendan O’Grady and Anton Rizor, Baker McKenzie
• the same confidentiality requirements in respect of confidential or privileged information in the pro- ceeding to which the representative plaintiff would be subject; and • the deemed undertaking rules established by the rules of court, as if the funder were a party to the proceeding. A court will also consider whether the representative plaintiff received independent legal advice regarding the agreement. 3.10 Disclosure and Privilege Discovery Process The process for documentary disclosure in class actions is similar to the procedure for normal civil proceedings. During the certification process, the representative plaintiff and the defendants are not subject to broad disclosure obligations. Typically, the parties will pro- duce evidence and documents that support their position on the certification motion. This evidence is exchanged in the form of affidavits along with sup- porting documents. Depending on the jurisdiction, parties either have the right to cross-examine the opposing parties’ affiants or may do so on consent or with leave from the court. As discussed in 3.2 Overview of Procedure , once a class action has been certified, the parties are obligat- ed to disclose all relevant documents in their power, possession or control and submit to examinations for discovery. The discovery process will often involve confidential information. Parties can apply for protective orders from the court to request that certain confidential information be prohibited from public disclosure. Privilege Evidence in class proceedings is subject to several forms of privilege, including the following. • Solicitor–client privilege – this privilege applies to communications between a lawyer and client in connection with providing legal advice.
• Litigation privilege – this privilege applies to com- munications between lawyers, clients and third parties where the dominant purpose of the com- munication is to prepare for current or reasonably contemplated litigation. • Settlement privilege – this privilege applies to communications between the parties and their representatives in contemplation of resolving the dispute. • Common interest privilege – this privilege concerns communications between parties with a common interest in actual or pending litigation. It is common in complex multiparty class actions that several defendants enter into a “joint defence agreement” or a “common interest privilege agreement” to formalise their claims to privilege. 3.11 Remedies In theory, all remedies available in individual proceed- ings are also available in class proceedings, including common law, statutory and equitable relief. The court has broad discretion in determining the monetary damage award. In appropriate circum- stances, the court may award aggregate damages for the whole class without looking at the individual circumstances of individual class members. In most Canadian jurisdictions, courts can consider statistical evidence to determine the amount and distribution of an aggregate damage award as appropriate. The court cannot award aggregate damages if proof of damages is required from individuals. In those cir- cumstances, the court may make a class-wide finding of liability and then order streamlined individual trials to determine the loss of each class member. Plaintiffs regularly seek punitive damages. A court will only award punitive damages following a trial of common issues where the defendant’s conduct was sufficiently “malicious, oppressive, and high handed [such] that it offends the court’s sense of decency”. 3.12 Settlement and ADR Mechanisms Mediation Mediation is well established in Canada, including in class proceedings. Following certification, it is com- mon for class action parties to engage in mediation as
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