The B.C. Court of Appeal has ruled that plaintiffs in a
certified class action cannot compel the production of
information about class members from the third party
physicians who treated them. The decision in Logan v.
Hong, 2013 BCCA 249 is an important reaffirmation of
the confidentiality principle inherent in the
physician-patient relationship, and a reminder that class
proceedings legislation cannot derogate from substantive
The Logan class action was certified in 2011, as Logan v.
Dermatech, Intradermal Distribution Inc., 2011 BCSC 1097. The class
consisted of all persons injected with the anti-wrinkle
product "Dermalive", who thereafter developed granulomas
(or red bumps) in the areas injected.
In 2012, the plaintiff obtained an order requiring numerous
third party physicians and clinics throughout Canada
to provide the names, addresses and other contact information
of persons to whom they had administered Dermalive. The
purpose of the order was allow the plaintiff to provide
the notice of certification required under s. 19 of the B.C.
Class Proceedings Act to the class members by direct
mailing. The physicians were granted leave to appeal that order to the Court
The Logan Decision
In reasons dated May 27, 2013, the Court of Appeal set the
production order aside, finding that it "impermissibly pierces
the physician-patient relationship in circumstances that do not
meet the high test for such interference". Saunders
J.A., who delivered judgment for the Court, held that the
order was problematic even though it did not require disclosure of
medical records per se, and related to a cosmetic
treatment rather than one of a more sensitive nature (e.g.,
for mental health, sexual or procreative issues). She
also found it irrelevant what proportion of the patients whose
names were expected to be produced were members of the class.
According Saunders J.A.:
...[T]he judge erred in principle by elevating the purposes of
the Class Proceedings Act and the search for legal redress
above the fundamental principle of confidentiality that adheres,
for the benefit of the community, to the physician-patient
The value of redress through the justice system is significant.
However, in my respectful view, one cannot say that recovery of
money trumps the rights of the patient to keep private both the
nature of medical services received and contact information held by
the physician. (paras. 11 and 18)
The ruling in Logan will be important in future medical
products and pharmaceutical class actions where plaintiffs seek
information from third party physicians about the treatments
provided to individual class members. The Court of
Appeal's reasons are a clear indication that such
information cannot be compelled in violation of patient
confidentiality rights merely in order to facilitate the procedural
aims of class actions. The principle of access to
justice, in other words, has limits; it does not
enable access to private medical information from third
parties regarding patients who may or may not be members
of the class.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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