Canada: A Legal Wrinkle: Class Action Proceeding Does Not Justify Breach Of Doctor-Patient Confidentiality

Last Updated: June 4 2013
Article by Joan Young and Linda Yang

In a case that pitted privacy rights against the efficacy of class notification, the British Columbia Court of Appeal has come down squarely on the side of upholding privacy rights. Two years ago, the British Columbia Supreme Court certified a class proceeding against Dermatech, a French manufacturer, and its Canadian distributors, Intradermal Distribution Inc. and Vivier Pharma Inc., where it was alleged that the Defendants were negligent in the manufacture and distribution of Dermalive, a medical cosmetic product designed to be injected into patients to reduce wrinkles: Logan v Dermatech, Intradermal Distribution Inc.1

The class was approved for class members who developed granulomas2 in the areas injected with Dermalive. The potential class was estimated at 600, calculated on a study that indicated 5.5% of Dermalive users developed complications. Just under 11,000 syringes of Dermalive were distributed in Canada before sales ceased in 2007.

Upon certification, the Plaintiff proposed to use direct mailing as the most effective way to give notice to class members. To do this, the Plaintiff successfully applied for an order forcing a large number of doctors who may have injected patients with Dermalive to provide the names, addresses, and other contact information of their patients to the class representative. None of the doctors was a party to the class proceedings.

The doctors who were the subjects of this order applied successfully to the Court of Appeal to set aside the disclosure order.3

In analyzing the reasons for granting disclosure, the Court of Appeal held that the need for the representative class plaintiff to provide notice to the class did not meet the high threshold test for piercing the confidentiality of the doctor-patient relationship. In coming to this conclusion, the Court gave full weight to the principles of confidentiality and privacy guarding this relationship. These principles trump both the purposes of the Class Proceedings Act and the value of legal redress (i.e., recovery of money), especially since nearly 95% of those proposed patients to be contacted were not even expected to be class members. The Court added that the outcome would be the same even if the vast majority (e.g., 95%) of the patients were expected to be class members.

The key driver for this result was the finding by the Court that maintaining confidentiality and privacy within the doctor-patient relationship is a fundamental principle that can only be overridden where there are serious health or safety concerns, or express legislative provisions compelling the release of information in the public interest. This has been a long-standing and significant part of the common law in Canada. The Court relied on historical case law, such as Halls v Mitchell,4 where Canada's highest court held that the patient has an absolute right to require that medical information be kept secret, unless there is some paramount reason which overrides it, such as individual or public safety, and McInerney v MacDonald,5 where it was held that medical information is highly private; going to the personal integrity and autonomy of the individual. The patient has a basic and continuing interest in the usage of and access to this information.

The Court of Appeal made reference to the Canadian Medical Association's Code of Ethics which states similar principles in "Privacy and Confidentiality" as part of the "Fundamental Responsibilities" of doctors. The Class Plaintiff attempted to argue that there was a distinction to be drawn between releasing confidential medical records and releasing less sensitive patient contact information. The Court rejected this assertion, noting that the disclosure of contact information would still reveal the fact of a particular medical treatment. The nature of the medical treatment was also not viewed as a useful factor because privacy and confidentiality apply to cosmetic medical treatments as well as to the treatment of other medical issues.

Previous decisions in which non-parties have been required to turn over confidential information for the purposes of identifying class members were distinguished by the Court, including Hoy v Medtronics Inc,6 where a judge ordered the defendant manufacturer to provide the names of the doctors and clinics to whom it had sold its product, noting that the manufacturer did not have a doctor-patient relationship with these doctors and clinics, who in turn were not in any way compelled to provide patient information as a result of the disclosure order. In Dalhuisen v Maxim's Bakery Ltd,7 where a judge ordered the BC Centre of Disease Control (CDC) to disclose the names and addresses of people infected with salmonella from eating the defendant's products, the Court noted that the information was transmitted to the CDC in the interest of public safety, a long-recognized reason to override doctor-patient confidentiality. In addition, since the CDC is a public body, the release of information was governed by the Freedom of Information and Protection of Privacy Act, which is not applicable to individual doctors.

Finally, the Court of Appeal distinguished two cases in which physician-patient confidentiality was not even an issue. The first was Farkas v Sunnybrook & Women's College Health Sciences Centre,8 an Ontario Superior Court of Justice decision in which only one thing was clear: the information sought related only to class members. The second was Dominguez v Northland Properties Corporation,9 in which the order to disclose involved information held by the defendant employer and related solely to class members. The Court of Appeal pointed out that confidentiality issues in the employment context do not rise to the level of doctor-patient privilege.

The Court of Appeal left two significant issues to be decided: whether ordering non-parties to disclose information is an impermissible transfer of class litigation costs, and whether it is within the jurisdiction of the court to order physicians outside British Columbia to provide the requested information. These interesting questions will be left to another case.


1 2011 BCSC 1097.

2 A mass of tissue, typically produced in response to infection, inflammation, or, in this case, the presence of a foreign substance.

Logan v Hong 2012 BCCA 399.

4 [1928] SCR 125.

5 [1992] 2 SCR 138.

6 2002 BCSC 1551.

7 2002 BCSC 1146.

8 [2004] OJ No 5134 (SC).

9 2012 BCSC 328.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2013 McMillan LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Joan Young
Linda Yang
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions