Executive Summary: Key Legal and Evidentiary Issues

• Discretion of the court to limit cross-examination on sworn declarations at the class action authorization stage.

• Determination of whether written cross-examination adequately protects procedural rights of petitioners.

• Evaluation of alleged irreparable harm resulting from restricted cross-examination format.

• Consistency of Superior Court decisions regarding the right to cross-examine in class action proceedings.

• Application of Articles 31 and 32 of the Code of Civil Procedure in granting leave to appeal interlocutory judgments.

• Admissibility and sufficiency of evidence produced by the respondent to counter class action allegations.

Facts of the case

Hanna Guila Toledano and 9466-4315 Québec Inc. initiated proceedings seeking authorization to institute a class action against the Bank of Nova Scotia. The impetus for the case was a major service outage on November 12, 2024, which allegedly prevented customers from accessing their bank accounts and conducting basic banking transactions. The petitioners claimed that this outage caused significant inconvenience and sought to represent a class of similarly affected customers.

Procedural background and evidentiary issues

Before the class action could be authorized, the Bank of Nova Scotia filed an application under Article 574 al. 3 of the Code of Civil Procedure to introduce a sworn declaration from one of its directors, along with supporting exhibits. The bank’s evidence included the petitioners’ bank statements, which showed numerous transactions on the day of the alleged outage, and records indicating that neither petitioner contacted customer support regarding access issues between November 10 and November 30, 2024. The Superior Court judge granted the bank’s application to file this evidence and allowed the petitioners to cross-examine the declarant, but limited the cross-examination to written questions on specific factual issues, particularly regarding the timing of transactions and the ability to contact customer service on the day in question.

Arguments on appeal

The petitioners sought leave to appeal, arguing that the judge erred in restricting their right to oral cross-examination on the sworn declaration. They contended that Article 105 al. 3 C.C.P. provides a strict right to cross-examine, and that limiting the process to written questions deprived them of the spontaneity and effectiveness of oral examination. They also highlighted conflicting decisions in the Superior Court on this procedural issue and argued that the limitation caused them irreparable harm.

Court of Appeal’s analysis and outcome

The Court of Appeal, presided over by the Honourable Stephen W. Hamilton, J.A., found that the petitioners had not demonstrated any irreparable harm or unreasonableness in the trial judge’s decision. The court noted that the petitioners were not denied the right to cross-examine altogether, but were instead permitted to do so in writing on the relevant issues. The judge’s discretion to manage the process was deemed reasonable, especially given the nature of the evidence and the absence of any credibility dispute. The court also observed that any further questions regarding the bank statements or customer service contacts could be addressed by the petitioners themselves, as they were best positioned to provide such evidence. Although the court acknowledged inconsistencies in lower court decisions regarding cross-examination rights at the authorization stage of class actions, it concluded that this case was not the appropriate vehicle to resolve the broader issue.

Ruling and conclusion

The Court of Appeal dismissed the application for leave to appeal and ordered the petitioners to pay judicial costs. No damages were awarded, as the decision was procedural and did not address the merits of the underlying class action. The Bank of Nova Scotia was the successful party in this appeal, and the amount of costs to be paid by the petitioners was not specified in the judgment.