Extra-Jurisdictional Evidence Gathering In Class Certification Motions

With no right of discovery in advance of certification, class counsel have been increasingly looking for other avenues to obtain information to assist with their certification motions. One recent trend amongst the plaintiffs' bar has been to attempt to gather information from the United States (where there are often parallel proceedings or parties), by availing themselves of 1782 of Title 28 of the U.S. Code entitled Assistance To Foreign And International Tribunals And To Litigants Before Such Tribunals. Pursuant to 28 U.S.C. §1782, an "interested person" (which includes parties involved in disputes in another country) can seek and obtain, on an ex parte basis, subpoenas compelling oral testimony and documentary discovery without first obtaining Letters Rogatory (a request from their local court) in their home jurisdiction. But what happens when obtaining such relief intersects with the Rules of Civil Procedure and case management regime in the Canadian court where the class action was commenced?

In a recently affirmed 2017 decision of Justice Perell of the Ontario Superior Court of Justice (Mancinelli v. Royal Bank of Canada, 2017 ONSC 87, affirmed by the Divisional Court 2018 ONSC 1844), the Court took a dim view of the plaintiffs' use of 28...