Ontario Civil


Civil Procedure

DISCOVERY
Aggregate assessment was not tallying of individual claims but communal assessment

Plaintiffs were former franchisees and were representative plaintiffs in class action. Plaintiffs claimed price maintenance conspiracy and breach of contract and argued franchisees were charged exorbitant prices for food and other supplies for restaurants. Defendant Quiznos were franchisors and defendant GFS were suppliers. Plaintiffs brought motion for vice-president of Quiznos and vice-president of GFS to answer questions refused on examinations for discovery. Plaintiff sought order requiring GFS to provide further and better affidavit of documents. Quiznos and GFS brought cross-motions to require owners of plaintiff former franchisees to answer questions refused. Very few questions needed to be answered. Chart set out specific questions and which questions required answering. Motion was adjourned so far as question might touch exclusively on matter of privilege. There was insufficient evidentiary record to determine merits of assertions of privilege. Plaintiffs achieved certification on top-down set of common issues and would mutate common issues into disproportionate and unmanageable bottom-up with product-by-product questioning. Material and relevant questions did not involve bottom-up inquiry. Common issue about mark-ups and sourcing fees involved inquiries about top-down systemic approach by defendants to charge mark-ups and sourcing fees. Focus of action was about systemic overcharging not individual product overcharging. It was inconsistent for plaintiffs to say records of sales to 450 franchisees were needed to prove damages as common issue when it would be bottom-up approach. Some questions purporting to be about aggregate damages were improper and reflected misapprehension about nature of aggregate damages. Aggregate assessment was not tallying of individual claims but was communal assessment of totality of claims where underlying facts permitted it to be done with reasonable accuracy. Some of questions were irrelevant as concerning events after cut-off of class period end-date. For already produced documents if there was readily available copy in excel format then document was to be produced again in excel format.

2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp. (Nov. 21, 2012, Ont. S.C.J., Perell J., File No. 06-CV-311330CP) 223 A.C.W.S. (3d) 49.

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