The Supreme Court of British Columbia has issued a ruling in a long-running class action lawsuit involving the fees and expiry dates of prepaid payment cards1. Justice E. McDonald recently presided over an application brought by the representative plaintiff, Ying Jiang, who sought to compel several non-party companies to produce financial records and provide testimony ahead of a common issues trial. The decision, indexed as 2025 BCSC 2559, represents a interesting turn in the litigation, which has been making its way through the provincial court system for more than a decade. While the plaintiff was successful in securing an order for document production against one major third party, the court ultimately denied requests to use interprovincial subpoenas and international letters of request for several other entities, citing specific limitations within the British Columbia Supreme Court Civil Rules.
The litigation began in September 2014, when Ying Jiang filed a class proceeding against Peoples Trust Company and several other financial institutions. The core of the complaint involves the use of prepaid purchase cards, specifically non-reloadable and reloadable Visa or Mastercard products. The plaintiff alleges that the defendants sold these cards with expiry dates and charged various fees for their purchase and use in a manner that violated Part 4.1 of the Business Practices and Consumer Protection Act of British Columbia. This legislation provides specific protections for consumers regarding prepaid purchase cards, and the lawsuit seeks to determine whether the cards issued by the defendants are subject to these statutory restrictions.
The procedural history of the case is extensive and has involved multiple trips to the British Columbia Court of Appeal. In 2016, a case management judge initially dismissed the plaintiff’s application for certification. However, that decision was overturned on appeal in 2017, and the matter was remitted for reconsideration. By March 2018, several common issues were certified, including whether the cards met the legal definition of a prepaid purchase card, whether the provincial legislation applied to cards sold both inside and outside of British Columbia, and whether the defendants charged fees or set expiry dates in violation of the law. After the Supreme Court of Canada declined to hear a further appeal on the certification, the parties moved into the discovery phase of the litigation.
In late 2021, Justice McDonald ordered Peoples Trust to produce a variety of financial documents, including spreadsheets, summaries, and reports detailing fees collected, seized balances, and sales volumes during the class period. During subsequent discovery sessions, however, a representative for Peoples Trust indicated that the bank did not have possession or control over many of these specific financial records. Instead, the bank suggested that these documents were likely held by various third-party program managers who handled the actual administration of the card programs. This revelation prompted the plaintiff to seek the records directly from those non-party entities, leading to the application heard in October 2025.
The plaintiff’s application targeted a wide array of companies, categorized by their location. The first category involved InComm Canada Prepaid, Inc., a non-party from which the plaintiff sought specific spreadsheets and data files. The second category involved five companies located in other Canadian provinces, including Blackhawk Network (Canada) Limited and EML Payments Canada Ltd. The third category consisted of several foreign companies, such as MasterCard Prepaid Management Services Limited and Wex Health, Inc., located outside of Canada. The plaintiff sought to use various legal tools, including Rule 7-1(18) for document production, the Subpoena (Interprovincial) Act for Canadian entities, and letters of request for international entities, to obtain the necessary evidence for trial.
Peoples Trust and the non-parties opposed the application on several grounds. They argued that the requested financial documents were not relevant to the certified common issues, particularly because the court had not yet certified a common issue regarding the calculation of aggregate damages. They characterized the plaintiff’s request as a “fishing expedition” and argued that the documents were not necessary to prove the liability issues currently at stake. Furthermore, they contended that the request would require the non-parties to “create” new documents, such as custom spreadsheets, rather than simply producing existing records, which they argued was beyond the scope of the court’s authority.
In her analysis of the request against InComm Canada, Justice McDonald turned to Rule 7-1(18), which allows a court to order a non-party to produce documents that relate to a matter in issue. She noted that the threshold for such an order is whether the applicant can demonstrate the existence and potential relevance of the documents beyond a mere possibility. Justice McDonald rejected the defendants’ argument that she should perform a “course correction” on her previous findings regarding relevance. She noted that she had already determined in 2021 that these financial documents were relevant to the litigation, a finding that had been upheld by the Court of Appeal.
Justice McDonald emphasized that while the documents might be useful for assessing damages, they were also relevant to determining liability. For example, the records could help prove whether prohibited fees were actually charged to cardholders or whether certain cards actually expired. She observed that statutory interpretation must be performed in context, and it is not up to the defendants to decide what evidence the plaintiff is allowed to use to establish her case. The court also addressed the technological argument regarding the “creation” of documents. Justice McDonald ruled that information stored in a database is considered a “document” under the Supreme Court Civil Rules. She found that exporting data into a common format, such as a comma separated value (CSV) file, does not constitute the creation of a new document but is rather a modern method of producing electronic information. Consequently, she ordered InComm to deliver the requested data by the end of January 2026.
However, the plaintiff was less successful regarding the other non-party entities. The court scrutinized the requests for interprovincial certificates and international letters of request under Rule 7-8. These procedural tools are designed to compel witnesses to attend trial or provide deposition testimony for use at trial. Justice McDonald found that the “true character” of the plaintiff’s application against the Non-BC and Foreign companies was an attempt to conduct pre-trial discovery. She noted that the plaintiff was primarily seeking the production of documents before the trial began, rather than simply securing testimony for the trial itself.
The judge explained that under British Columbia law, the processes for letters rogatory and interprovincial subpoenas are not intended to be used as a means of aiding pre-trial discovery of non-parties. She cited existing case law which establishes that while a party can compel a non-party to bring documents to a trial or a deposition intended for trial use, they cannot use these specific tools to conduct a wide-ranging investigation or document hunt before the trial commences. Because the plaintiff’s application appeared to be a direct result of gaps found during the discovery of Peoples Trust, the court concluded that it was an impermissible attempt to extend the discovery process to third parties outside of the province.
The decision concluded with a ruling on costs. Justice McDonald noted that the no-costs regime typically found in the Class Proceedings Act does not apply to non-parties who are dragged into litigation. As a result, she ordered that InComm Canada be reimbursed by the plaintiff for its reasonable costs incurred in producing the requested database records. For the other non-party companies that successfully opposed the application, the court awarded them legal costs against the plaintiff. This ruling highlights the complexities involved in class action discovery, particularly when essential data is held by third-party service providers rather than the primary defendants. The case will now proceed with the newly ordered data from InComm as the parties prepare for the common issues trial.
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