Jiang v. Peoples Trust Company

2025 BCSC 2559 Jiang v. Peoples Trust Company

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Jiang v. Peoples Trust Company, 2025 BCSC 2559 Date: 20251229 Docket: S147229 Registry: Vancouver Between: Ying Jiang Plaintiff And Peoples Trust Company, Peoples Card Services Limited Partnership, Peoples Card Services Ltd., Vancouver City Savings Credit Union, Citizens Bank of Canada, Amex Bank of Canada, and All Trans Financial Services Credit Union Limited Defendants Before: The Honourable Justice E. McDonald Reasons for Judgment Counsel for the Plaintiff: A. Sharon B. McLean S. Lin Counsel for Peoples Trust Company, Peoples Card Services Limited Partnership, and Peoples Card Services Ltd.: B. Dixon, K.C. M. Maniago R. Sider Counsel for Vancouver City Savings Credit Union and Citizens Bank of Canada R. Reinertson J. Hutchinson Counsel for Non-Party, InComm Canada Prepaid, Inc. E. Bojm F.L. Pierce Counsel for Non-Party, Blackhawk Network (Canada) Limited G. Green Counsel for Non-Party, MasterCard Prepaid Management Services Limited J. Virgin Counsel for Non-Party, Swift Prepaid Solutions, Inc. A. Gold M. Power Counsel for Non-Party, Wex Health, Inc. A. Crabtree Place and Date of Hearing: Vancouver, B.C. October 21, 2025 Place and Date of Judgment: Vancouver, B.C. December 29, 2025 Table of Contents I. Overview.. 4 II. Background.. 5 III. Issues. 8 IV. Analysis. 9 A. Rule 7-1(18) - Document Production by InComm Canada

Prepaid, Inc. 9 B. Rule 7-8 - Letters of Request & SIA. 13 V. Costs. 16 I. Overview [1] In this class proceeding, the plaintiff seeks orders requiring non-parties to produce documents before trial and for representatives of the non-parties to attend trial or be deposed for use at trial. The defendant, Peoples Trust, opposes the application, as do the non-parties who responded to the plaintiff's application. [2] On November 9, 2021, I ordered Peoples Trust to produce, among other things, financial documents consisting of "any and all spreadsheets, summaries and/or reports of the fees collected, any balances seized, transactions or sales of the prepaid cards, and/or forecasting volumes of sales during the class period" (the "Financial Documents"). [3] In discovery, the nominee for Peoples Trust indicated that Peoples Trust did not have possession or control of certain Financial Documents and that they were potentially held by specific non-parties. The plaintiff now seeks to obtain the Financial Documents and evidence about the Financial Documents from the non-parties. [4] The defendant, Peoples Trust, made extensive submission opposing the application. All respondents adopted the submissions of Peoples Trust. In summary, the respondents submit that the documents sought are not relevant and they will not advance the matters in issue, including because there is no certified common

issues on aggregate damages. [5] The respondents also submitted that the application should be denied on the basis that the procedural tools in Rule 7-8(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [SCCR] and s. 5 of the Subpoena (Interprovincial) Act, R.S.B.C. 1996, c. 442 [S(I)A] cannot be used in aid of discovery. [6] Finally, the respondents submitted that the burden on the non-parties to produce the Financial Documents is burdensome and disproportionate or it would require the creation of documents. [7] I have determined for the following reasons, that the plaintiff is entitled to the orders sought pursuant to Rule 7-1(18) but not the orders sought pursuant to Rule 7-8. II. Background [8] The procedural background of this proceeding, including a description of my November 9, 2021 decision and order respecting document production, is summarized by Justice Marchand (as he then was) in the unsuccessful leave to appeal decision indexed as Jiang v. Peoples Trust Company, 2022 BCCA 40 at paras. 3-23 [Jiang (BCCA) 2022]: Procedural History [3] This application arises in the context of a class action proceeding commenced in September 2014, relating to the use of prepaid purchase cards (non‑credit Visa or Mastercards) issued by various financial institutions. The plaintiff alleges that the defendants sold prepaid purchase cards with expiry dates and fees for the purchase

and use of the cards, contrary to Part 4.1 of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 [BPCPA]. [4] In March 2016, Justice Bowden, then the case management judge, dismissed the plaintiff's certification application on the basis that it did not meet certain requirements of the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA]. His decision is indexed as 2016 BCSC 368. In March 2017, this Court allowed an appeal and remitted the certification application to Bowden J. for reconsideration. This Court's decision is indexed as 2017 BCCA 119. Upon hearing the remitted certification application, in March 2018 Bowden J. certified the following as common issues: 1. Are the reloadable or non‑reloadable prepaid cards (together, the "Prepaid Cards"), or both, issued and/or sold by the Defendants, "prepaid purchase cards" as defined in s. 56.1 of the BPCPA?

2. Does the BPCPA apply to the Prepaid Cards issued and/or sold by each of the Defendants to consumers in British Columbia?

3. Does the BPCPA apply to the Prepaid Cards issued and/or sold by each of the Defendants to consumers outside of British Columbia?

4. Did the Defendants charge any fees in relation to any of the Prepaid Cards contrary to s. 56.3 of the BPCPA?

5. Did the Defendants issue Prepaid Cards that have expiry dates contrary to s. 56.2 of the BPCPA? [5] The certification decision is indexed as 2018 BCSC 299 and was upheld by this Court: 2019 BCCA 149, leave to appeal to SCC ref'd, 38738 (14 November 2019). [6] In January 2020, the defendants served their lists of documents on the plaintiff. They disclosed, among other things, cardholder agreements, card packaging, disclosure statements and user guides. Their lists also contained boilerplate descriptions of classes of documents for which privilege from production is claimed. The descriptions did not identify or provide any detail about individual documents. [7] On August 11, 2020, the plaintiff brought an application before the current case management judge seeking additional documents from all defendants, except for Amex Bank of Canada, in three general categories: a) documents related to marketing and advertising prepaid cards (the "Marketing Documents"); b) agreements with third‑party distributors of the prepaid cards (the "Agreements"); and c) information and documents relating to the number and value of prepaid cards sold during the class period, including fees charged and balances that were "seized" (the "Financial Documents"). [8] The plaintiff also sought to require the defendants to amend their lists of documents to provide more information with respect to documents

over which privilege from production had been claimed. [9] The defendants opposed the application for production of documents. They argued the documents were irrelevant, the scope of the demand exceeded the principles of proportionality, and privileged documents were properly listed and adequately described. Reasons for Judgment [10] On November 9, 2021, the case management judge granted the orders sought by the plaintiff. The reasons of the case management judge are indexed as 2021 BCSC 2193. [11] The judge considered, at paras. 17-19 of her reasons, that a party demanding additional documents that are not material, but that relate to any or all matters in the action (often referred to as "second tier" documents), must satisfy the requirements of R. 7‑1(11) and show the existence and possible relevance of the additional documents beyond a "mere possibility." She noted that the burden on a party seeking documents under R. 7‑1(11) is low, and simply requires some "air of reality between the documents and the issues in the action." [12] The judge also considered that the proportionality principle in R. 1‑3(2) requires the court to attempt to balance the burden of producing additional documents against their materiality and probative value: at para. 20. [13] In her analysis, the judge noted that for class actions, relevance is the animating principle in considering a request for

additional document discovery. She explained that the question of relevance is "governed by the certified common issues, as informed by the pleadings, and subject to the principles of proportionality that apply alongside the principles that govern class action proceedings": at para. 22. [14] In the circumstances, the judge determined that the plaintiff's request for additional documents contained sufficient specificity to meet the requirements of R. 7‑1(11) and noted that the defendants had acknowledged that, in many instances, the documents did exist: at paras. 25, 27. [15] The judge, at para. 31, held that the Marketing Documents and Agreements ought to be listed and produced because "they are clearly relevant to some of the common issues as informed by the pleadings." Notably, the judge found that the Marketing Documents were relevant to the issue of whether the plaintiff and other class members were consumers within the meaning of the BPCPA, which is a central issue in this class action. The judge also determined that the Marketing Documents and Agreements were relevant to issues raised in the pleadings, including statements about the defendants' involvement in the marketing and distribution of the prepaid cards: at paras. 28-31. [16] For the Financial Documents, the judge was satisfied that the plaintiff had "shown an air of reality and more than a mere possibility that

the Financial Documents are relevant and they relate to the common issues and other issues raised in the pleadings": at para. 39. [17] The judge referred to Bernstein v. Peoples Trust Company, 2019 ONSC 2867. Bernstein involved a similar class action in Ontario in which the plaintiff relied on similar documents to establish both the defendants' liability and damages. The judge rejected the defendants' argument that Bernstein was irrelevant because it involved different parties, different cards, and different legislation: at paras. 37-38. [18] The judge expressly rejected the defendants' argument that since this class action raises only narrow issues of statutory interpretation, the plaintiffs do not require any evidence beyond what was already disclosed. She explained: [34] Arguments that this action raises only narrow issues of statutory interpretation that require no evidence beyond the evidence already produced by the defendants is not an answer to the plaintiff's application. I say this because statutory interpretation must be undertaken in accordance with the modern principle of statutory interpretation "that is, that the words of a statute must be read 'in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament'" [emphasis added]: Canada (Minister of Citizenship and

Immigration) v. Vavilov, 2019 SCC 65 at para. 117, citing Rizzo & Rizzo Shoes Ltd. (Re), [1988] 1 S.C.R. 27 at para. 21. [35] Since the [BPCPA], like any other statute, is to be interpreted in accordance with the modern principle of statutory interpretation, it is not for the defendants to decide what evidence the plaintiff will advance to establish her case. [19] The judge also held that the possible relevance of the Financial Documents to the potential remedy of aggregate damages, which she noted was not a certified common issue, did not make them irrelevant for the purposes of the common issues: at para. 36. [20] The judge acknowledged that, in considering the scope of examination for discovery in a class action, the proportionality principle had to be considered alongside the principles that govern class action proceedings. Under R. 1‑3, proportionality means to conduct the proceeding in a manner proportionate to the amount involved and the importance and complexity of the issues in dispute: at para. 42. [21] The judge decided that a broad scope should apply to the issue of document discovery in this case due to the large sum of damages at issue, the important issues raised, and the complexity of the factual and legal issues: at paras. 41-43. [22] The judge then weighed the burden of producing the demanded documents against their materiality and probative value. In doing

so, she considered the nature of the claim and the position of the defendants as sophisticated financial institutions. She found that it was appropriate and proportionate to require the defendants to disclose the requested documents: at paras. 44-45. [23] While the judge ordered that the defendants list and produce the demanded documents, she made no determination on whether any particular document was in the possession or control of a defendant. She held that, if they arose, such issues were better left to be determined after the defendants provided an amended list of documents: at para. 46. [9] My reasons for judgment respecting the November 9, 2021, order are indexed at 2021 BCSC 2193 [Jiang (BCSC) 2021]. III. Issues [10] The only issues are whether, for each of the non-parties, I should make the following orders: a) That InComm Canada Prepaid, Inc. shall deliver any and all spreadsheets, summaries and/or reports, or a spreadsheet or a comma separated value file generated from a database, containing the information described in the application to the plaintiff; b) Applying the court's seal to certificates compelling a representative of each of Blackhawk (Canada) Network Ltd., Payment Source Inc., DCR Strategies Inc., EML Payments Canada Ltd. and EnStream LP to produce documents prior to the common issues trial, and to testify at trial pursuant to the S(I)A and c) Issuing

letters of request for a representative of each of MasterCard Prepaid Management Services Limited, Swift Prepaid Solutions, Inc., Wex Health, Inc., Galileo Processing Inc., and Fidelity National Information Services, Inc. to produce certain documents to the plaintiff before the common issues trial, to be examined under oath or affirmation, and to provide directions that plaintiff may apply to the appropriate jurisdiction to enforce the letter of request. IV. Analysis A. Rule 7-1(18) - Document Production by InComm Canada Prepaid, Inc. [11] For documents in the possession of a non-party, Rule 7-1(18) provides that the court may make an order for the production, inspection and copying of the document and/or preparation of a certified copy that may be used instead of the original. The rule is intended to provide a means of obtaining the production and inspection of documents if the applicant can demonstrate the documents are in the possession of the non-party and the documents contain "information which may relate to a matter in issue" and satisfy the court that the application is not a "fishing expedition": Dufault v. Stevens (1978), 6 B.C.L.R. 1999 (C.A.). [12] In Northwest Organics, Limited Partnership v. Roest, 2017 BCSC 673 at para. 81, Justice G.C. Weatherill notes that Rule 7-1(18) makes it clear it was not intended to provide "broad discovery of documents from non-parties,

but rather a mechanism by which parties can access specific documents or classes of documents" once it has been shown that the documents are relevant and in the possession or control of the non-party. [13] The specificity required by Rule 7-1(18) was addressed in Mann v. Jagpal, 2020 BCSC 1919 at para. 48, where Justice Giaschi also emphasized that sub-rule (18) is not intended to provide broad discovery of documents from non-parties and that a higher level of specificity is required due to the use of the words "a document" and "the document", rather than the more general "all documents" in Rule 7-1(1). [14] The respondents oppose the application, submitting that the applicant has not shown how the records sought are relevant to a matter in issue in the certified common issues. [15] I find that the plaintiff has met the specificity requirement required by Rule 7-1(18). The plaintiff is very specific about the documents sought. The evidence is clear that the plaintiff is seeking to access specific documents or classes of documents. [16] Counsel for Peoples Trust reiterates arguments made both before me and at the leave to appeal application. A key point to the submission is that the requested Financial Documents, now sought from the non-parties, relate solely to assessing aggregate damages in circumstances where there is no such certified common issue. I addressed that matter in

my November 9, 2021 reasons. Justice Marchand (as he then was) also addressed that matter in the Court of Appeal's decision dismissing the application for leave to appeal from the November 9, 2021, order. [17] Now that it has been established through the discovery nominee of Peoples Trust that Peoples Trust is not in possession or control of the Financial Documents sought by the plaintiff in this application. I fail to see how I could reconsider the finding about the relevance of Financial Documents simply because it has now come to light that they are potentially in the possession or control of a non-party, In-Comm. [18] As already mentioned, the respondents also submit that the requested documents are neither relevant nor necessary to advance the common issues because the certified common issues do not include a claim for aggregate damages. The respondents point out that the plaintiff explicitly acknowledges in her application that the requested documents would be relevant to aggregate damages. [19] However, while the plaintiff has explicitly acknowledged that the documents sought could be relevant to establishing damages, that is not the end of their potential use. The plaintiff submits the requested documents are also relevant to, for example, the common issue of whether the defendants charged fees or whether the class members a consumers as defined by the legislation. [20]

The plaintiff points out that in respect of the decision denying leave to appeal from November 9, 2021 order in Jiang (BCCA) 2022, Justice Marchand noted at para. 50: [50] Resolving the common issues will involve more than an abstract interpretation of the BPCPA. It will involve, among other things, determining whether the class members are consumers as defined by the legislation and whether prohibited fees were actually charged or cards actually expired contrary to the legislation. Though involving somewhat different legislative language, in Bernstein, the Court relied on the very types of documents ordered to be produced by the judge to support its liability findings: see Bernstein at paras. 233-234, 240-257. Perhaps the applicants will ultimately succeed in distinguishing Bernstein at trial, but that does not make the Marketing Documents, Agreements and Financial Documents irrelevant to the exercise of determining liability. [21] Counsel for Peoples Trust submits that the present application represents a chance for the court to make a "course correction" in respect of my previous decision respecting the relevance of the Financial Documents. Counsel submits that because this is not an application pursuant to Rule 7-1(11), and because a different test is involved, Peoples Trust is not simply rehashing its earlier, unsuccessful argument, leaving the court free to reach a

different conclusion. [22] The plaintiff submits that the requested documents are necessary, including because the plaintiff sought admissions from Peoples Trust that at least one cardholder of various prepaid cards incurred an activation fee at the time of purchase. That request was denied. Therefore, the plaintiff submits that she will be required to prove those key facts and to refute the defendant's denials, including by obtaining the requested documents and evidence from the non-parties who possess the documents, to show that indeed, activation and other fees were being charged to cardholders. [23] Counsel for Peoples Trust also submits that the requested documents are not necessary because the evidence about the fees is present in the terms of the cardholder agreements and prepaid card packaging, which have been produced. The plaintiff disagrees with that. In short, there are disagreements about the import of what has been produced so far. The plaintiff is entitled to seek to prove her case as she sees fit and she may employ various tools in the SCCR to do so. [24] I agree with the plaintiff that I previously determined that the Financial Documents are relevant, as I explained in my November 9, 2021 reasons. In my view, the submission that Rules 7-1(18) and 7-8 involve different tests, does not assist the respondents in opposing this aspect of the application before

me. [25] I find no basis to reach a different conclusion on relevance on the application before me. The plaintiff will continue carry the onus to prove her case, including as to whether fees were charged. [26] I do not read Jiang (BCCA) 2022, as suggesting that I ought now to reach a different conclusion about the relevance of the Financial Documents because Peoples Trust does not have possession or control of the Financial Documents. [27] There is a further argument by the respondents that the order sought under Rule 7-1(18) represents an impermissible request to "create" documents. However, nothing in the record suggests that In-Comm takes the position that Financial Documents are not in its possession or control. Rather, the respondents take the position that the order sought would require them to create documents, such as spreadsheets, which is inappropriate and inconsistent with the SCCR. [28] The plaintiff submits that the requested documents involve exporting information held In-Comm it its database and if they were granted access to the database, the information could be accessed. However, without access to the database, the information sought must be exported. The form of the information, namely, comma separated value, comes from the model rules for technological use, i.e. a CSV file for data. [29] In Animal Welfare International Inc. v. W3 International Media Ltd.,

2011 BCSC 299 [Animal Welfare] at paras. 31-36, Justice Armstrong observed that information in electronic form is producible under the SCCR and "document" includes information stored by means of any device. In that case, "some data capable of generating a revenue, expense and profit statement" was determined to be in the possession of the party and to be producible, whether it is available in a paper copy or if stored on an electronic device, to be produced in the electronic version. [30] In HTMQ in Right of the Province of New Brunswick v. Rothmans Inc., 2016 NBQB 106, at para. 4, Justice Cyr, concluded, after referring to Animal Welfare and Andersen v. St. Jude Medical Inc., [2008] O.J. No. 430, that "databases have been held to be documents". [31] On my reading of the authorities, the specific Financial Information requested, namely, the spreadsheets, summaries and other reports containing the data points, whether it already exists in printed form or it is held in In-Comm's database(s), are documents that are producible under the SCCR, including Rule 7-1(18). [32] Therefore, I grant the order sought in paragraph 1 of part 1 of the August 21, 2025 application, with the modification that In-Comm Canada Prepaid Management Services Limited shall have until January 30, 2026 to deliver the material to the plaintiff's solicitors. B. Rule 7-8 - Letters of Request & SIA [33] The

plaintiff seeks, in respect of the non-parties located in provinces other than British Columbia, namely, Blackhawk (Canada) Network Ltd., Payment Source Inc., DCR Strategies Inc., EML Payments Canada Ltd. and EnStream LP (the "Non-BC Companies"), that the court affix its seal to certificates pursuant to the SIA in the form attached to the application. In addition to seeking the certificates, the plaintiff also seeks orders that specific documents be produced by the Non-BC Companies. [34] The certificate pursuant to the SIA, states that I have certified that the counsel for the plaintiff, who seeks to compel the attendance of a representative of the Non-BC Companies, "to produce documents or other articles or to testify, or both, in a proceeding in British Columbia". The certificate also states that I am satisfied the appearance of the representative as a witness in the proceeding "is necessary for the adjudication of the proceeding, and, in relation to the nature and importance of the proceedings, is reasonable and essential to the administration of justice in British Columbia". [35] The plaintiff also seeks, in respect of the non-parties that are located outside of Canada, namely, MasterCard Prepaid Management Services Limited, Swift Prepaid Solutions, Inc., Wex Health, Inc. Galileo Financial Technologies LLC, formally [sic] Galileo Processing Inc., and Fidelity National

Information Services, Inc., formally [sic] eFunds Corporation, formally [sic] Wildcard Systems Inc. (referred to as the "Foreign Companies"), that the court issue letters of request in the forms attached to the notice of application, for a representative of each of the Foreign Companies, to produce specified documents to plaintiff's counsel before the common issues trial. [36] The letters of request for each of the Foreign Companies states, among other things, that as it appears "that it is necessary for the purposes of justice and for the due determination of the matters in question between the parties that the representative of [each of the Foreign Companies] should produce documents and be examined on oath or affirmation relating to those matters." The letters of request also state that this court requests the assistance of the foreign court to take and record the deposition of the representative (whose specific identity is not stated in the proposed order or the letter of request), and to mark any document produced for identification. [37] The respondents oppose on the basis that an order cannot be made under Rule 7-8(10) in aid of discovery because the letter of request procedure is limited to taking of deposition evidence for purposes of tendering it at trial: United Services Funds v. Richardson Greenshields of Canada Ltd., 1988 CanLII 2960 (BCCA) [USF]. [38] In

responding to the resistance to the application by the respondents, the plaintiff's counsel repeatedly emphasized that the plaintiff is not seeking the orders in aid of examination or document discovery. Rather, the plaintiff is seeking depositions for use at trial and Rule 7-8 allows for documents to be produced at part of a deposition. [39] It is clear that because of answers given by the nominee of Peoples Trust at her examination for discovery, which were to the effect that the non-party program managers, not Peoples Trust, potentially had the information and documents sought, the plaintiff is now pursuing answers and information directly from the program manager entities. In other words, this application results directly from the examination for discovery of the nominee of Peoples Trust. Considering that, I find it apparent that the true character of this application is aiding pre-trial examination of non-party witnesses. [40] I also find that the essential relief sought in the application vis-à-vis the Non-BC Companies and the Foreign Companies is first and foremost, that they produce specified documents to the plaintiff before the common issues trial. The certificates and letters of request requiring a representative to produce documents or to testify, or to be summoned for deposition, appears to be secondary to the central relief of pre-trial production of documents and

examination of non-party witnesses. [41] When the relief sought in the plaintiff's application is considered for what it really is, and not strictly as set out in the form of the certificates or the letters of request, it is plain that the plaintiff seeks to utilize the subpoenas and letters rogatory as a process in aid of pre-trial discovery of documents and/or non-party witnesses, which is not provided for by our law: USF, at p. 8; Araya v. Nevsun Resources Ltd., 2019 BCSC 260 at para. 55. [42] In my view, because the notice of application makes clear that the plaintiff is seeking to employ the Rule 7-8 deposition and letters rogatory process in aid of pre-trial examination and discovery of documents, which our law does not permit, that justifies denying the relief sought in paragraphs 2-21 of part 1 of the application. V. Costs [43] The non-parties who responded seek costs. They submit that as non-parties, they are not caught by the no-costs rule in the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA]. They also submit that if they succeed in opposing the application, they should be awarded costs or if the order is made, they should be entitled to the reasonable costs of producing the documents. [44] The plaintiff did not disagree with the submission that the no-costs regime of the CPA is inapplicable vis-à-vis the non-parties. The plaintiff did not specifically respond to

the non-parties' submissions that in the event the order is granted, the plaintiff should pay their reasonable costs for producing the documents. [45] I am of the view that In-Comm is entitled to recover its reasonable costs of producing the documents. If the parties are unable to agree as to the reasonable costs, they have leave to seek further direction from me, and the parties are directed to contact SC Scheduling to arrange an appearance before me by MS Teams video at 9:15 am, respecting further directions about determining reasonable costs of producing the documents. [46] For the remaining non-party respondents, other than In-Comm, they responded and ultimately succeeded in opposing the application. As such, those non-party respondents are entitled to an award of costs against the plaintiff at Scale B. "E. McDonald J."