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.
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