In a recent decision, Dine v Biomet, 2015 ONSC 1911
(CanLII), Belobaba J sets a clear rule regarding the production of
medical records before certification and before any
cross-examination of the proposed representative plaintiff. The
decision provides a clarity that will assist both the plaintiff and
defence class action bar, and hopefully result in fewer
pre-certification production motions.
The current Ontario rule is that the production of medical
records pre-certification will only be ordered if the defendant can
show that the documentation is relevant to one or more of the
Class Proceedings Act section 5 certification criteria. It
is not enough for the defendant to simply assert, for example, that
the medical records 'may be relevant' to certification. The
defendant has to explain how they are relevant –
"some measure of explanation is needed." The defendant
must present something more than bald assertions to the Court
before production will be ordered.
Belobaba J. noted that the certification motion is a procedural
motion that has nothing to do with the merits of the actual
proceeding. At the pre-certification stage, the court must be
vigilant to ensure that the certification motion does not become
mired down in the merits of an individual claim. From a cost point
of view, if the class action is to remain viable as a vehicle for
improved access to justice, it cannot be front end-loaded at the
certification stage with evidence that is unnecessary and
irrelevant. Judicial discretion should appropriately consider this
when exercising control over the discovery process.
Belobaba J. refused to order the production of the medical
documentation requested by the defendant, except for additional
information relating to the specific implants that were inserted.
He held that the information was relevant to the section 5(1)(e)
issue, as the defendant questioned whether the plaintiff was
actually a member of the class he purported to represent.
Of note, the defendant had filed a motion for summary judgment
asking that the individual action be dismissed in its entirety. It
submitted that the summary judgment motion on its own justified the
production of all of the requested medical documentation. Belobaba
J. soundly rejected this "wrongheaded" argument. There
was no individual action to which the motion for summary judgment
could attach. The fact that the defendant intended to bring a
motion for summary judgment shortly after the certification motion,
has no bearing on the analysis of whether medical records should be
ordered to be produced pre-certification.
As a result of Belobaba J's decision, all counsel and the
Court can now rely on a clearly stated and more focussed rule when
it comes to determining when motions for production of medical
records should be granted in a pre-certification context.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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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