Ontario Superior Court Rejects Pre-Certification Discovery in Children's Homes Class Action

In Morrison v. Hatts Off Inc. et al., 2025 ONSC 4320, the Ontario Superior Court of Justice declined to order pre-certification discovery of sensitive Children’s Aid Society records in a proposed class action alleging systemic negligence and fiduciary breaches in children’s group homes. The decision reinforces the principle that there is no right to "pre-certification" discovery, particularly when that discovery would result in the disclosure of highly sensitive records involving a minor.

The plaintiff, a former resident of one of the group homes, filed a certification record that included, among other things, selected documents from his Children’s Aid Society file. The defendants sought production of the full Children’s Aid Society files of the plaintiff and others, arguing that proceeding to cross-examinations for the certification motion without contemporaneous records would be unfair.

Justice Valente dismissed the motion, emphasizing that the plaintiff’s burden at certification is limited to adducing limited evidence that the common issues exist. The court relied upon the fact that the test for pre-certification production is whether the requested documents are “necessary and relevant to the issues on certification,” not whether production is required as a matter of basic fairness.

The court found that the defendants’ request for full Children’s Aid Society files amounted to a “fishing trip”, unsupported by a showing of necessity or relevance to the certification issues.

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• The decision emphasized the importance of protecting the privacy of young people’s records. Citing A.B. v. Bragg Communications Inc., R v. Jarvis and R v. Canadian Broadcasting Corporation, the court reaffirmed that the protection of children’s privacy is a core societal value and cannot be overridden merely by participation in legal proceedings.
• The ruling clarified that Rule 30.10 of the Rules of Civil Procedure, which permits third-party production of non-privileged documents, must be interpreted in light of the procedural stage of the class proceeding. The court found that the Children’s Aid Society records were neither relevant to the certification issues nor necessary to avoid unfairness, particularly given the absence of pleadings and the lack of prejudice from delayed disclosure.