Executive Summary: Key Legal and Evidentiary Issues

• Certification stage limits evidence to establishing “some basis in fact” under section 5(1)(b)–(e) of the Class Proceedings Act.

• Plaintiff's effort to elicit merit-based evidence was rejected as unnecessary for certification.

• AHS's reference to legal advice in affidavit did not constitute waiver of solicitor-client privilege.

• Court ordered AHS to answer two specific factual questions and one undertaking unrelated to privileged or merit-based issues.

• Request to examine additional AHS employees under Rule 6.8 was denied due to irrelevance to certification issues.

• Disclosure of AHS employee contact details was also refused as unnecessary for certification purposes.

Facts of the case

Mena Salamh, a cardiologist trained in Egypt, emigrated to Canada in 2013. He is currently employed by Alberta Health Services (AHS) as a Clinical Assistant, a role designated for internationally trained physicians who are not licensed to practice medicine in Alberta. In his claim, Salamh alleges that AHS breached its obligations to Clinical Assistants by failing to pay them properly for overtime, not providing required rest periods, and imposing excessively long shifts—actions he claims contravene the Employment Standards Code, RSA 2000, c. E-9. He also alleges that AHS acted in bad faith and made misrepresentations to Clinical Assistants about their employment entitlements.

Salamh brought this action as a proposed class proceeding on behalf of all Clinical Assistants employed by AHS since August 12, 2013. The action seeks certification under the Class Proceedings Act, SA 2003, c. C-16.5 (CPA). At the time of this decision, the parties were still in the pre-certification stage, having filed evidence and conducted questioning. Salamh applied to compel AHS to answer certain disputed questions and undertakings arising from the cross-examination of AHS affiant William Hondas. He also sought to examine additional AHS personnel identified in Mr. Hondas’s affidavit.

Policy terms and legal framework

The court emphasized that evidence at the certification stage is limited to establishing the statutory requirements under section 5(1) of the CPA, excluding any inquiry into the merits of the plaintiff’s claims. The five certification criteria include: (a) a disclosed cause of action, (b) an identifiable class, (c) common issues, (d) preferability of a class proceeding, and (e) adequacy of the representative plaintiff.

Justice Simard highlighted that certification is not concerned with the likelihood of success at trial but whether the action is appropriate to proceed as a class action. Citing authority, the court stated that "evidence going to the merits of the proposed class action is not relevant at the certification application" and that a plaintiff “need only demonstrate a minimum evidentiary basis” for certification under s. 5(1)(b)–(e).

AHS stated it would not argue that the plaintiff’s case is “doomed to fail” at certification, a position that limited the relevance of evidence about the merits of the claim. Despite this, Salamh attempted to argue that such evidence was needed to support certification criteria related to common issues and preferability.

The court also addressed a dispute over privilege. Mr. Hondas’s affidavit referenced a 2022 legal opinion obtained by AHS, noting that legal advice was sought in July 2022 and received in September 2022. Based on that advice, AHS began paying overtime retroactively from April 1, 2022, for hours exceeding 44 per week. Salamh claimed this amounted to a waiver of privilege. However, the court held that the affidavit merely recited a sequence of events and did not waive privilege, as it did not disclose or rely on the content of the legal advice.

Outcome

Justice Simard dismissed most of Salamh’s application. The court ruled that most of the disputed questions and undertakings were either:

1. Irrelevant to the certification requirements under s. 5(1) of the CPA because they related to the merits of the plaintiff’s claims, or

2. Sought information protected by solicitor-client privilege.

However, the court ordered AHS to answer two specific questions from page 191 of the transcript and one outstanding undertaking (Undertaking 53), which asked for clarification about an internal statement regarding Clinical Assistants’ eligibility for overtime. These were found to be follow-ups on factual statements in Mr. Hondas’s affidavit and did not intrude upon privileged material or merit-based issues.

Salamh’s request to examine additional AHS personnel under Rule 6.8 was denied. The court found that their evidence on the “inner workings and mindset of AHS” was only relevant to the merits of the case and not required for certification. Similarly, the request for contact information for those individuals was refused as irrelevant at this stage.

The decision concluded with a clarification that the court’s rulings pertained solely to the certification phase and did not prejudge the merits of the action or preclude future applications based on new information.

There was no monetary award, costs, or damages granted or ordered in this decision.