Alberta Court Clarifies Rules On Undertakings In The Class Action Certification Process

A recent decision of the Alberta Court of Queen's Bench has clarified the limits on demands for undertakings, specifically in the context of cross-examining on an affidavit in a proposed class action. The decision provides useful guidance on when the Court will—and will not—compel responses to undertakings refused by a deponent in this situation. In short, the Court is mindful of efficiency and the possibility of prejudice to the defendant, and will only compel responses on undertakings where such production is likely to assist the Court at the certification application.

In the case at bar, Rieger v Plains Midstream Canada ULC,1 the plaintiffs are awaiting a 2020 certification hearing on a proposed class action involving a pipeline release near Sundre, Alberta. In preparing for the certification hearing, the plaintiffs conducted cross-examination on affidavits filed by the defendant's corporate representative. The defendant's representative provided some undertakings, but refused others, leading to the plaintiffs' application to compel such responses.

In Alberta, adverse parties have the right to cross examine on affidavits filed in support of, or in response to, an application.2 However, for the purposes of the application, the deponent is a witness, and greater restraint is expected in requesting undertakings than in the examination of a litigant for discovery.3 Justice Poelman noted that with respect to cross-examination on an affidavit generally:

Undertakings should only be directed where the deponent referred to information or documents in the affidavit (or must have reviewed information or documents to make the statements in the affidavit); or the undertakings relate to an important issue in the application and answering them would not be overly onerous and "would likely significantly help the court in the determination of the application".4 The reference to "the court" is worth highlighting. The Court may order disclosure at the pre-certification stage of a proposed class action, but such discretion will only be exercised in cases where the requested productions are "necessary in order to inform the certification process".5 In other words, undertakings from a cross-examination on an affidavit at the pre-certification stage will only be ordered to assist the Court in determining whether to certify an action, and not for the purpose of assisting a litigant. The Court considers the factors in sections 5(1) and 5(2) of the Class...