QUEEN’S BENCH FOR SASKATCHEWAN Date: 2009 09 29 Citation: 2009 SKQB 517 Docket: QBG 153/05 Judicial Centre: Regina BETWEEN: ROSA ALVES, MARIE BONNER, DALE BONNER, ROBERT BRANDT, KELLY BREZINSKI, DARREN MCLELLAND, CORRADO PAINA, DENIS SANCHE, INEZ SANCHE, BARTON SMITH, MICHELLE SMITH, JANUSZ SPRAWNY, PETER TATHAM, LAURIE WILSON, CINDY WRIGHT,JOE WURM, and REBECCA WURM and MYTRAVEL CANADA HOLIDAYS INC., carrying on business as SUNQUEST, FIRST CHOICE CANADA INC., carrying on business as SIGNATURE VACATIONS, TRANSAT A.T. INC., carrying on business as WORLD OF VACATIONS and AIR TRANSAT HOLIDAYS, RED SEAL VACATIONS INC., carrying on business as SUNWING Counsel: E.F.Anthony Merchant, Q.C. for the plaintiffs Mirilyn R. Sharp for the defendant, Red Seal Vacations Inc. Sally Gomery for the defendant, MyTravel Canada Holidays Inc. Brad D. Hunter for the defendant, Transat A.T. Inc. Timothy J. Law For the defendant, First Choice Canada Inc. JUDGMENT KEENE J. September 29, 2009 1) Mr. Merchant brings two separate notices of motion. The first request is that Sarah Moore be examined on her affidavit. Ms. Moore swore this affidavit on June 24, 2009. 2) The second motion requested the following relief: (a) Red Seal Vacations Inc. (“Red Seal”) deliver notice to class members who booked vacation through Red Seal to stay at resort in Holguin, Cuba between November 1st, 2004 and February 1st, 2005 in the following terms: On behalf of those who purchased vacation package from one or more of the Defendants to stay at resort in Holguin, Cuba between November 1st, 2004 and February 1st, 2005, the Plaintiffs, through their counsel, Merchant Law Group LLP, filed class action lawsuit in the Court of Queen’s Bench for Saskatchewan. The lawsuit asserts that the Defendants failed to provide basic water services at various Holguin resorts including the (1) Playa Costa Verda/Playa Pesquero; (2) Club Amigo Altantico Guardalavarca; (3) Club Covarrubias; (4) Maritim Costa Verde Beach; (5) Playa Pesquero; (6) Grand Playa Pesquero; (7) Brisas Guardalavaca; and (8) Sol Rio de Luna Mares, and that class members suffered loss and are entitled to aggravated, compensatory, and punitive damages as result. In order to be advanced as class action, the lawsuit must be certified by the Court of Queen’s Bench. On November 24th, 2008, the Plaintiffs applied for certification. The application is currently scheduled to be heard during the week of January 25th, 2010 before the Honourable Mr. Justice Keene. You are receiving this notice now because on March 12th, 2009, Defendant, Red Seal Vacations Inc. (“Red Seal”) moved to dismiss the claim against it on the basis that there is no plaintiff named in the statement of claim who purchased Holguin vacation package from Red Seal. The Plaintiffs have opposed the motion. If the motion succeeds, the action will be dismissed against Red Seal only. If you purchased Holguin vacation package through Red Seal, you may then be barred from filing an individual action due to the expiry of an application limitation period. If you are willing to be representative plaintiff, seek to participate in or be separately represented at the certification hearing, or want additional information concerning this class action or the above notice and its consequences on you, please contact Merchant Law Group LLP at (888) 567-7777 forthwith, failing which your right to bring court proceedings arising from this matter may be forever extinguished without further notice. (b) or, alternatively, that Red Seal provide list of the names and addressess of potential class members who booked through Red Seal to this Honourable Court or to Merchant Law Group LLP so that the said notice may be effected. 3) This judgment will deal with both motions in addition to the other issues raised during argument. These motions were heard on September 17, 2009. Mr. Merchant participated on behalf of the plaintiffs and Ms. Sharp participated on behalf of the defendant Red Seal Vacations Inc. Counsel for the other defendants took no role in the application although Mr. Law, Counsel on behalf of the defendant First Choice Canada Inc. listened to the argument via telephone. 4) This is essentially matter between the plaintiffs and Red Seal Vacations Inc. (Red Seal). The issues can be described as follows: a) whether plaintiffs’ counsel, Merchant Law Group, (MLG) should be granted leave pursuit to Rule 317 to cross examine Sarah Moore on her affidavit sworn June 24, 2009; b) whether MLG should be granted an order requiring Red Seal to serve pre-certification notices to all persons who travelled with Red Seal during the purposed class; c) whether MLG is entitled to demand, prior to the hearing of the certification motion, that Red Seal provide MLG with list of names and addresses of all persons who travelled with Red Seal during the proposed class; d) should there be compliance with Rule 82(6) and Rule 82(7) of the Saskatchewan Queen’s Bench Rules of Court; e) costs of these two applications ANALYSIS OF ISSUES 5) a) whether plaintiffs’ counsel, Merchant Law Group, (MLG) should be granted leave pursuit to Rule 317 to cross examine Sarah Moore on her affidavit sworn June 24, 2009; 6) It is important to review how the Moore affidavit came to be. Red Seal earlier sought to conduct examination of seven persons alleged by the plaintiffs to be viable class members in the proceeding against it (the Roussys and boyfriends ). Red Seal alleges that these seven people had all ready entered into full and final settlements with it and are not therefore entitled to be part of the action against Red Seal. 7) Mr. Justice Ottenbreit was the designated Justice of this action at that time. Ottenbreit J. delivered judgment on the above issue on June 16, 2009. The judgment held that counsel for Red Seal could not examine the Roussys. However, the court directed that: [11] am, therefore, not prepared to make the order requested by counsel for Red Seal. However, am prepared to allow Red Seal to file an affidavit with respect to this issue within seven days on the basis that Red Seal may argue that should consider it as part of the certification. Likewise, the plaintiffs have leave to file response affidavit within three days thereafter which they may, as well, want me to consider at certification.” 8) In accordance with Ottenbreit J.’s direction; Sarah Moore sworn an affidavit on June 24, 2009 on behalf of Red Seal. 9) It is important to appreciate the context by which the Moore affidavit was filed in these proceedings. The affidavit was filed for the sole purpose of providing the evidence that the Roussys had settled with Red Seal and therefore could not be viable parties to this action. This type of evidence and the arguments that apparently flow from this evidence are not to be heard now, but will be heard on January 25, 2010 in conjunction with Red Seals request to dismiss this action against it. 10) The Moore affidavit contains several paragraphs (para. 9, 10, 11, 12 and 13) that are of limited probative value and appear to be more argument than anything else. However, the balance of the affidavit alleges “settlement” entered into by the Roussys with Red Seal. 11) Therefore the Moore affidavit has followed the direction of Ottenbreit J. (i.e. providing an affidavit on the issue of the viability the Roussys as plaintiffs). 12) Ottenbreit J. went on to direct that the plaintiffs could file reply affidavit within days of the filing of the Moore affidavit. The purpose of the reply affidavit was to give the Roussys or others an opportunity to provide evidence on the issue of the settlement with Red Seal. 13) Ottenbreit J. was careful not to enter into any sort of discussion as to the merits of any defences. The court merely wanted to give Red Seal an opportunity to put forth evidence regarding the alleged settlement and give the plaintiffs an opportunity to reply. 14) In light of the above contextual understanding of the Moore affidavit and how it came to be; it is not necessary in my view to discuss the complexities of pre-certification examination of witnesses. 15) am merely following Ottenbreit J.’s judgment by noting that Red Seal could (and did) provide an affidavit specifically dealing with the issue that arose out of the request by Red Seal to examine the Roussys. 16) There is nothing in the judgment of Ottenbreit J. that could be interpreted as saying the plaintiffs could cross examine Ms. Moore on her affidavit in due course. Indeed Ottenbreit J. directed that the only thing the plaintiffs could do was to file a reply affidavit within three days. The plaintiffs chose not to do this. 17) In my view it is not reasonable for the MLG several weeks after the deadline for filing the reply affidavit to embark on a totally different approach (i.e. examining the affidavit as opposed to providing their own evidence). 18) It appears to me that the actual purpose of examining Ms. Moore is not to challenge her version of the circumstances leading up to the signing of the alleged settlement agreements by the Roussys, but rather a more general and broad ranging interrogation of Ms. Moore about other customers who may have booked through her office with Red Seal at the relevant time of this case. The examination may even end up being more broad ranging than that and could be an attempt via Ms. Moore to get information from Red Seal itself as to its customer data base that Red Seal may have regarding customers that may have booked with Red Seal to go to Holguin during the relevant time. It is clear that Ms. Moore is not director or officer of Red Seal and that in itself might lead to multitude of issues such as production of documents and undertakings and so forth. From practical point of view that could result in further motions arising out of this examination. 19) Accordingly, based on the plain wording of Justice Ottenbreit J.’s judgment and the context of the preparation of the Moore affidavit; I must dismiss the application for examination on the Moore affidavit. 20) appreciate that both counsel spent considerable amount of time discussing whether or not examinations of affidavits can take place at the pre-certification stage. 21) Counsel for Red Seal took the position that there have not be any previous cases in which plaintiff was allowed to cross examine defendant on an affidavit. 22) Counsel for the plaintiff stated that may be correct but that is of no consequence. 23) However, as indicated it is not necessary for me to get into the whole issue of examination of witnesses prior to certification. am not prepared to broaden the scope of Ottenbreit J.’s decision to allow for examination of Ms. Moore. b) whether MLG should be granted an order requiring Red Seal to serve pre-certification notices to all persons who travelled with Red Seal during the purposed class; c) whether MLG is entitled to demand, prior to the hearing of the certification motion, that Red Seal provide MLG with list of names and addresses of all persons who travelled with Red Seal during the proposed class; 24) The second motion is more complex and requires more thorough analysis of the legislation and case law. 25) Essentially Mr. Merchant wants the defendant Red Seal to produce list of names, addresses, etc. so that his office can provide notice to such individuals as follows: “If you are willing to be representative plaintiff, seek to participate in or be separately represented at the certificate hearing, or want additional information concerning this class action or the above notice and its consequences on you, please contact Merchant Law Group LLP at (888-567-7777) forthwith, failing which your right to bring court proceedings arising from this matter may be forever extinguished without further notice.” 26) In the alternative Mr. Merchant proposes that presumably because of confidentially issues that Red Seal send out the above notice and provide proof that the notice was sent out in compliance with anticipated order. 27) It is important to remember that we are in the pre-certification stage of this proceeding. This is still an “action” and not a “class action”. An action is defined under s. of The Class Actions Act as meaning “an action that defined The Queen’s Bench Act, 1998" and Class Action is defined under s. as meaning “an action certified as class action pursuant to Part II”. 28) Mr. Merchant’s request for this pre-certification notice is novel. In its barest terms it is request that defendant provide plaintiff. There is much more complexity to this but as stated in its barest sense that is what this amounts to. 29) This is still an “action” only. The usual practices and application of the common law regarding civil litigation apply. The practices and the implementation of The Rules of Court do not get suspended merely because this matter has been brought under The Class Actions Act. 30) have taken into consideration Mr. Merchant’s comments about his interpretation of Hoffman vs. Monsanto Canada Inc., 2003 SKQB 564 (CanLII) and Smith J. comment’s as follows: [18] finally, it is appropriate to consider that class actions legislation as relatively new in Canada, in general, and in Saskatchewan, in particular, jurisprudence interpreting the criteria for certification still in its infancy. This provides additional reason why the court should be slow to duly restrict the evidential record that either party wishes to place before the court, which might be necessary for advancing novel arguments on still unresolved issues. 31) agree that some latitude has been given to the pre-certification portion of an action. However, in my view the uniqueness of class action cases do not completely bend the conventional rules and practice regarding civil litigation. It would essentially not make sense for defendant to have to produce plaintiff. 32) am aware of Lewis Shell (2000) 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 in which the Ontario court ordered notice to potential class members. However, that case is not similar to this case. In the Lewis case the court was faced with concern over the defendant contacting individuals who might be potentially class members for the purpose of obtaining early settlements. That is not the situation here. 33) note the following sections in our Class Action Act: s. 14 The court may, at any time, make any order it considers appropriate respecting the conduct of class action to ensure fair and expeditious determination and, for that purpose, may impose on one or more of the parties any terms it considers appropriate. (Emphasis added) s. 24(1) At any time in class action, the court may order any party to give notice to the persons mentioned in the order to protect the interrests of any class member or party or to ensure the fair conduct of the action.(Emphasis added) 34) The two sections refer to “class action” and not “action”. Accordingly the plain wording of the two actions is that either section can only be referenced by party after the action has been approved as class action. According it is not in my view open to the plaintiffs make use of either section at this time. 35) It is important to keep in mind in reading cases from Ontario that neither the section dealing with the service of notice (section 19 of the Ontario Class Proceedings Act) nor the general provision allowing the Court to make any order considers appropriate (section 12 of the Ontario Class Proceedings Act) are limited to actions that have already been certified (unlike s. 14 and s. 24(1) our Class Action Act). 36) In Pearson vs Inco 2001 CanLII 28084 (ON SC), 2001 57 OR (3d) 278, the plaintiff brought motion pursuant to s. 12 of The Class Proceedings Act of Ontario for an order compelling the defendant to produce list of proposed class members who had been provided with letter and related package by the defendant (relating to test of their premises for contamination). In dismissing the motion, Mr. Justice Nordheimer first considered whether he had authority under The Class Proceedings Act to make the requested order prior to the certification and then concluded that even if he did not have authority under the Ontario Class Proceedings Act, it was his view that “any intervention by the court prior to certification should be narrowly directed and sparingly employed”. 37) quote from Mr. Justice Nordheimer in the noted case as follows: [8] “It should be noted at this juncture that, notwithstanding the plaintiff’s concerns that the materials are misleading, the plaintiff does not seek through this motion to restrain Inco from distributing the package nor does it seek to have this court direct Inco to change any portion of the material. Rather, the plaintiff seeks only to have the court order Inco to reveal the names of the nine property owners who have, to date, received the package. While not expressly requested, assume that the plaintiff wishes to have not only those names, but also the names of any property owners to whom the package may be sent in the future. It is acknowledged by counsel for the plaintiff that they want this information to that they may, in turn, send out their communications in effort, presume, to “correct” the record. [9] Section 12 of the Class Proceedings Act, 1992 states: 12. The court, on the motion of party or class member, may make any order it considers appropriate respecting the conduct of class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate. [10] confess that the wording of s. 12 does not make it clear to me how it confers jurisdiction on the court to make orders prior to the certification of the proceedings as class action since the section expressly refers to “class members”. Arguably, one cannot be class member until class is certified which would, in turn, suggest that the section was not intended to operate until class existed. However, other decisions of this court have relied on s. 12 to grant such orders see, for example Vitelli v. Villa Giardino Homes Ltd., (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.) And Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612, 46 C.P.C. (4th) 378 (S.C.J.). While am not bound by those decisions, would be loathe to disagree with their conclusion unless compelled to do so. am also cognizant of the fact that, even if the section does not grant the required authority, presumably party could still have resort to the inherent jurisdiction of the court to control its own process to obtain such relief. The issue is one that, in the end result, therefore, appears unnecessary to address. That being said, though, the jurisdictional concern only reinforces in my mind that any intervention by the court in such circumstances should be narrowly directed and sparingly employed since it serves to interfere with what otherwise would be the normal rights of parties, and others, to conduct their affairs as they see fit.” 38) Thus, even in situation where the Ontario Class Proceedings Act arguably allowed the Ontario Court to make pre-certification orders to produce list of proposed class members, Justice Nordheimer refused to do so because he did not consider that the circumstances warranted the exceptional intervention of the court under s. 12 The Class Proceedings Act, 1992. 39) In Saskatchewan the case of Sparvier vs Canada 2006 SKQB 533 (CanLII), Mr. Justice Ball dealt with pre-certification request by defendants counsel to order MLG to produce documents substantiating its entitlement to legal fees of $40,000,000.00 in the residential schools class proceedings. Justice Ball dealt specifically with the authority of the Saskatchewan Court to make pre-certification orders. 40) In that case the defendant argued that s. 14 of The Class Actions Act gave Justice Ball authority to make the pre-certification disclosure order. However, Justice Ball reviewed the words of s. 14 and the definition of “class action” and concluded at paragraph 36 that “until [the action] is certified, s. 14 does not apply.” In other words, it was Justice Ball’s view that the defendant could not rely on s. 14 prior to certification of the action as class action. 41) Justice Ball then went on to deal with the defendant’s assertion that despite the working of s. 14, the Court had an inherent jurisdiction to make the requested order for disclosure of documents. He held at paragraph 30 that: “...a superior court’s inherent jurisdiction to control its own process has been defined as the exercise of it residual power to ensure due process of lase, to present improper vexation or oppression, to do justice between the parties and to secure fair trial between them...” 42) Justice Ball went on to caution, however, that the Court’s inherent jurisdiction “is to be exercised judicially and only when the relief sought cannot reasonable and realistically be obtained by the applications in some other lawful manner”. He also noted that the Court’s inherent jurisdiction “will not be exercised in manner that effectively renders remedial legislation redundant.” In the end, Justice Ball refused to grant the pre-certification documentary production. 43) Here it seems that MLG has had over the last or so years ample opportunity to acquaint itself with prospective plaintiffs through “some...lawful manner”. 44) Counsel for the plaintiffs refer to Wallace CPR 2009 SKQB 178 (CanLII) as authority for obtaining pre-certification motions. However that case can be distinguished on the grounds that it dealt with unique set of circumstances in that the defendant was arguing that the counsel for the plaintiff had conflict of interest and should not be allowed to handle the case. In that case there was no reference by the court to s. 14 or 24 of The Class Actions Act. It would appear that the court was concentrating more on common law regarding that preliminary conflict objection. 45) Counsel for Red Seal referred to the Johnston State Farm (2003) 38 CPC (5th) 181, as further authority that this type of pre-certification notice (i.e. the defendant to give notice to the perspective plaintiffs) should fail. It is important to note that the Johnston case deals with the different legislation in Ontario (that is not as restrictive as the Saskatchewan legislation when it comes to pre-certification notice). 46) Counsel for Red Seal advises that the Johnston case dealt with the Ontario equivalent of the very section Mr. Merchant now relies on as support for the requested order for pre-certification notice and/or list of names and addresses of person who travelled to Holguin through Red Seal. 47) Justice Haines rejected out of hand the notion that s. 19 could be used to recruit representative plaintiffs when it turned out the original proposed representative plaintiff had no cause of action. In paragraph of his decision, Justice Haines held as follows: “.. do not see that the purpose of section 19 (1) is to provide mechanism for the recruitment of alternative representatives plaintiffs when it turns out the proposed represented plaintiff has no cause of action.” 48) am trying to be careful not to determine the merits of application to strike the action against Red Seal. However the Johnston case is illustrative of situation in which superior court did not allow for the notice to be circulated to perspective plaintiffs. 49) Justice Haines went on to state at paragraph 7: “It is my view that there is nothing in the conduct of the proceedings to date that could be characterized as unfair. Counsel for the plaintiff was made aware, very early in the proceedings, that the defendant was taking the position the plaintiff had no claim and would be moving for summary judgment. Counsel, therefore, had ample time and opportunity to find suitable substitute representative plaintiff and did not.” 50) Counsel for Red Seal has been quite open about its approach to these matters It wishes to have the action against itself struck for failure to produce proper representative plaintiff. 51) am not determining that contention at this time. The Johnston case is merely instructive to provide an example of where an Ontario Court faced with less restrictive wording declined to allow pre-certification notices to be sent to perspective plaintiffs. 52) In summary it is my view that usual approach to civil litigation does not allow for plaintiff to demand defendant produce plaintiff. Secondary the wording of s.14 and s. 24 of our Act in my view precludes this type of pre-certification notice. Finally the Sparvier case appears to be authority that success of such pre-certification motions would be rare in this jurisdiction. 53) However the matter does not end itself there. Mr. Merchant submits that the wording found in section 43(1) and 43(2) of the Act create concern about the suspension of time limitations. In other words if follow his argument it appears that he is saying that if he can not find viable plaintiffs in time for the certification hearing and rule that the Ragoonanan motion succeeds then that would fatal to large number of unsuspecting plaintiffs. 54) Mr. Merchant cited no Saskatchewan authority for the proposition that the limitation is suspended only if the action is eventually certified. 55) must emphasis that this discussion is not determinative for the purposes of the present motion. However, it is in my view that on proper reading of section 43(1) and 43(2) of The Class Actions Act, the limitation period is suspended both in the case of actions that are certified [s. 43 (2)] and in certain limited circumstances, in the case of actions that are not certified [s. 43(1)]. 56) Section 43(2) of The Class Actions Act deals with the suspension of limitations periods where the action is “certified as class action” and section 43(1) of The Class Action Act deals with the suspension of limitation periods even when the action is not certified not as class action. 57) Subsection 43(2) already codifies completely the concept of suspending the limitation period for actions that are eventually certified. What would be the purpose of subsection 43(1) if not to also include suspension of the limitation period (in certain circumstances) for actions that are not certified? 58) The reason Mr. Merchant raised this “limitation” concern is provide further initiative to this court to employ its inherent jurisdiction to look past the clear wording of s. 14 and s. 24(1) to “save the day”. am not satisfied that Mr. Merchant’s interpretation of the tolling of the limitations period is correct. 59) d) should there be compliance with Rule 82(6) and Rule 82 (7) of The Saskatchewan Queen’s Bench Rules of Court; 60) In the course of argument on September 17, 2009, Mr. Merchant raised concern about the noncompliance by counsel for Red Seal regarding Rule 82(6)(7). 61) Counsel for Red Seal complained that they had been taken off guard by this new issue and they did not anticipate having to argue the matter. 62) do not think that this is particularly complicated matter. Counsel for Red Seal was given ample opportunity to explain her position on this matter. Mr. Sharp advises that during case management conducted by Ottenbriet J. meeting she stated that she was not going to provided an affidavit. It appears that other counsel have filed the required affidavits as required by Rule 82(6)(7). It also appears clear that Red Seal opposes the certification application (i.e. therefore triggering the need to comply with Rule 82(6)(7). 63) Counsel for Red Seal advised it is part of her strategy to not provide the affidavit under Rule 82(6)(7) and that there has been no previous complaint or motion to compel her to do this. 64) Mr. Merchant has now raised this concern. 65) am satisfied that it is important that counsel follow the Rules of Court in actions commenced pursuant to The Class Actions Act. do not wish in any way that my comments be considered critical of the professional conduct of the counsel for Red Seal. That is not my intention. Counsel for Red Seal advises that she made mention of her strategic decision not to file the affidavit considerable time ago. accept that this took place. In addition counsel for Red Seal was candid during her oral argument on September 17, 2009. do not believe that her conduct was in any way unprofessional or unethical. 66) However, am going to order that counsel for Red Seal (and any other defendant who may not have complied) to comply with Rule 82(6)(7) and serve and file the required affidavit no later October 15, 2009. 67) The arguments raised were novel and certainly thought provoking. Even though dismissed both motions brought by MLG wish to exercise my discretion and not award costs. 68) I therefore dismiss both motions brought by MLG without costs. 69) In my previous fiat indicated that depending on the outcome of this particular matter would be putting forth schedule to help get this file moving ahead. know that counsel has not been given an opportunity to discuss scheduling but note that Justice Ottenbreit has already done this and had these matters proceeded when they were scheduled to do so the certification hearing would have actually been completed. Accordingly am going to presume that counsel would have been able to proceed earlier. Therefore do not feel that am in any way inhibiting the ability to present argument on January 25, 2010 by setting down some deadlines to get materials filed. 70) Therefore taking into consideration that this matter has been adjourned and would have been done by now; it seems reasonable that there has to be deadline to file amendments, briefs, or any other material. Accordingly order that the deadline to serve and file any amendments to the pleadings, motions, further briefs of law or any other material shall be December 2, 2009 at 4:00 p.m. Regina time. further give to until December 11, 2009 at 4:00 p.m. Regina time to reply to any such orders. Reply means service and filing of all such reply documents by December 11, 2009, at 4:00 p.m. Regina time. J. T. J. Keene
Counsel for the plaintiffs brings two notices of motion seeking 1) the opportunity to cross-examine a deponent on her affidavit and 2) an order to compel one of defendants to supply pre-certification notices to all persons who may be eligible to participate in the class action that is contemplated. HELD: The motions are dismissed with no order as to costs.  1) One of defendants contends that 7 people alleged by the plaintiffs to be viable class members have already entered into a full and final settlement with the defendant. This defendant earlier sought to examine these individuals. The Justice of this action at that time did not allow the examination but instead made an order permitting the defendant to file affidavits on the issue. This is the source of the affidavit the plaintiff seeks cross-examination on. The order also allowed the plaintiffs to file reply affidavits, which they chose not to do. There is nothing in the original order that could be interpreted as saying that the plaintiffs could cross-examine on the affidavit. In the view of the Court, having chosen not to file reply affidavits pursuant to the original order, it is not reasonable for plaintiff's counsel to embark on a totally different approach several weeks after the deadline has passed. There is also some concern that the actual purpose of the proposed cross-examination would be more general and broad-ranging than a mere challenge to the defendant's assertion that the individuals at issue have already entered into full and final settlements with the defendant.  2) In its barest sense, plaintiffs' counsel requests that the defendant supply a plaintiff by way of sending pre-certification notices to its clients. The Court is aware of Lewis v. Shell, where an Ontario court ordered notice to potential class members. However, that case is not similar to this case. In the Lewis case, the Court was faced with concern over the defendant contacting individuals who might be potential class members for the purpose of obtaining early settlements. Moreover, the Ontario class actions legislation is less restrictive than Saskatchewan's. The section of the Class Action Act which may permit such an order refer to a 'class action,' not an 'action.' As this case is still in the pre-certification stage, it is not yet a class action within the meaning of the Act. Spavier v. Canada also indicates that pre-certification motions of this sort would rarely be successful in this jurisdiction.