Court File and Parties
COURT FILE NO.: CV-13-5565-CP DATE: 2016/10/18 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHERRY-LYNN DANIELLS Plaintiff
- and -
MELISSA McLELLAN and NORTH BAY REGIONAL HEALTH CENTRE Defendants
COUNSEL: Wayne Stickland, for the Plaintiff Deborah Berlach, for the Defendant, North Bay Regional Health Centre No one appearing for the Defendant, Melissa McLellan
HEARD: September 1, 2016
BEFORE: Ellies J.
REASONS FOR DECISION
OVERVIEW
[1] The defendant, North Bay Regional Health Centre (the “hospital”), moves for an order in this, as yet uncertified, class proceeding compelling a representative plaintiff to provide information and produce documents requested during her cross-examination on the affidavit she swore in support of the certification motion under the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”).
[2] The motion arises in the context of a class proceeding in which the representative plaintiffs seek damages for intrusion upon seclusion on behalf of approximately 5,800 people whose medical information was improperly accessed by the defendant, Melissa McLellan. McLellan was an employee of the hospital at the time.
[3] The hospital contends that the information and documents requested are relevant to whether the representative plaintiff is appropriate in respect of proposed common issues of damages.
[4] In my view, the motion should be dismissed. The hospital has failed to explain how the information and documents requested are relevant to the issues to be determined on the certification motion. The relevance of the documents beyond those issues is limited. Requiring production of the documents would be disproportionate to the needs of the certification motion.
BACKGROUND
[5] I have already set out the facts behind this class proceeding in an earlier motion involving the same representative plaintiff, Andrea Kendall (2016 ONSC 3854). In the earlier motion, the hospital sought an order under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that Kendall could not act as a representative plaintiff because she had signed a release in favour of the hospital in settlement of an earlier medical malpractice action. In the medical malpractice action, Kendall and her mother sought damages against the hospital relating to a failed abortion. The hospital’s motion was dismissed. I held that the release did not preclude Kendall from pursuing the hospital for damages relating to the invasion of her privacy.
[6] In the present motion, the hospital seeks an order compelling Kendall:
(a) to produce the clinical notes and records of a counsellor, Trisha Mills, and a psychologist, Dr. Paul King, from 2009 until the present;
(b) to produce the transcript of the examination for discovery of Kendall from the medical malpractice action;
(c) to produce the transcript of the examination for discovery of the representative of the hospital in the medical malpractice action;
(d) to produce a psychological assessment of Kendall performed by Dr. Jeffrey Phillips in connection with the medical malpractice action; and
(e) to advise how much Kendall received in damages from the medical malpractice action.
[7] Kendall swore an affidavit in support of the certification motion on March 7, 2016. She was cross-examined on that affidavit on April 15, 2016. During her cross-examination, she testified that she began to receive counselling from Mills in 2009 in connection with her failed abortion. She further testified that she was referred to King in 2010 for treatment of depression and post-traumatic stress disorder. She testified that she continued to see King as of the date of the cross-examination. Kendall testified that she was undergoing counselling when she received a letter from the hospital dated September 6, 2011, notifying her that her privacy had been breached.
[8] Counsel for the hospital asked Kendall if she had dealt with the letter “in counselling”. Kendall responded in the affirmative. Counsel then requested “an undertaking for the records, first from Ms. Mills and then from Dr. King, from 2009 until the present” (transcript, p. 19, l.1). Plaintiff’s counsel responded (transcript, p. 19, l. 23):
I will request those records. I will review them. If there’s something I’m not prepared to disclose I’ll particularize that for you.
[9] Later in the cross-examination, Kendall was asked how much she received as damages in the medical malpractice action, which question she was advised not to answer. When asked to explain his advice, plaintiff’s counsel cited two reasons: namely, that the information was not relevant to the issues on certification and that it may be subject to settlement privilege.
[10] Towards the end of Kendall’s cross-examination, counsel for the hospital made requests for the other documents listed above, namely, the transcripts of the examinations for discovery in the medical malpractice action and the psychological assessment that had been prepared in connection with that action by Phillips. These requests were taken under advisement by plaintiff’s counsel.
[11] Following the cross-examination, plaintiff’s counsel requested and reviewed the records in question. With respect to the clinical notes and records, he wrote to advise counsel for the hospital that there was no mention of the privacy breach in the records of Mills and “no reference to the privacy breach, any emotional or psychological consequences from the privacy breach or treatment connected to the privacy breach” in King’s clinical notes and records. As a result, he refused to produce any part of the records on the basis that they are not relevant to the issues to be determined on certification.
[12] With respect to the other documents requested, plaintiff’s counsel subsequently wrote again to counsel for the hospital and advised her that no reference to the privacy breach was contained in any of them. For that reason, he took the same position he had taken with respect to the other records and refused to produce them.
ISSUES
[13] The issues in this motion are:
(1) Did plaintiff’s counsel undertake to produce the clinical notes and records of Trisha Mills and Paul King? (2) If so, has plaintiff’s counsel failed to fulfill his undertaking? (3) If not, should an order be made compelling the representative plaintiff to provide the documents and the information sought?
ANALYSIS
Issue 1: Did plaintiff’s counsel undertake to produce the clinical notes and records?
[14] The hospital argues that plaintiff’s counsel undertook to produce the clinical notes and records of Mills and King and is in breach of his undertaking by failing or refusing to produce them. I am unable to agree with that submission.
[15] Plaintiff’s counsel’s undertaking was only to request the records in question and to advise if there was something he did not wish to disclose. He has done that. Plaintiff’s counsel did not undertake to produce any part of those records.
[16] In my view, plaintiff’s counsel is not in breach of his undertaking.
Issue 2: Has counsel failed or refused to fulfill his undertaking?
[17] In light of my answer to issue 1, I need not address this issue.
Issue 3: Should the representative plaintiff be compelled to provide the information and documents requested?
[18] The onus on a defendant seeking pre-certification production of records has been the subject of a number of decisions by experienced and well-respected class action judges of our court. At first blush, some of them seem to conflict.
[19] As an overarching principle, it must be remembered that the certification motion is not intended to be a test of the merits of the action: Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68, [2001] S.C.R. 158, at para. 16. A plaintiff need only establish a “basis in fact” to succeed: Hollick, at para. 25. At the same time, the court must have a satisfactory evidentiary record in order to decide the issues for certification. Striking the appropriate balance between the plaintiff’s low threshold and the defendant’s right to respond can be difficult. As Strathy J. (as he then was) wrote in Roveredo v. Bard Canada Inc., 2010 ONSC 5240, at para. 9:
It is not always easy to separate, prior to the certification hearing, where an examination of the "basis in fact" ends and an impermissible excursion into the merits begins. Nor is it always easy to say whether a particular piece of evidence, viewed in isolation, will assist the court in addressing the certification test. It is undesirable that representative plaintiffs be subjected to burdensome production motions and extensive cross-examinations on what is meant to be a procedural motion. On the other hand, the process must be fair and the defendant must be given a reasonable opportunity to respond to the plaintiff's evidence. As well, the court cannot address certification in a vacuum. The apparent commonality of the issues and preferability of the procedure may appear obvious when looking at the pleadings or a limited record, but may become less obvious when a full and balanced record is available.
[20] In Dine v. Biomet Inc., 2015 ONSC 1911, Belobaba J. canvassed the existing jurisprudence in an effort to “formulate a clear rule” with respect to the pre-certification production of medical records (: para. 4). He found that, in Ontario, production of documents, including medical records, will only be ordered in advance of certification if the defendant can show that the documents are relevant to one or more of the issues on certification (: para. 10). In Dine, Belobaba J. repeated what he had said in the earlier case of Brown v. Janssen Inc., 2015 ONSC 1434, that it is not enough for the defendant to assert that the documents may be relevant to an issue at certification. The defendant must explain how they will be (: para. 9).
[21] In Batten v. Boehringer Ingelheim (Canada) Ltd., 2015 ONSC 7821, Perell J. expressed his support for Belobaba J.’s effort to bring stability to the law relating to pre-certification production of medical records and to cure what Perell J. called “the procedural nausea known in the trade as motion sickness” (para. 43). However, he held, at para. 26, that:
… to require in every case, the defendant to explain why the medical records are required could produce the unsalutary consequence of encouraging defendants to deliver expert evidence on the motion for production of additional medical records, which would exacerbate and not ameliorate the problem that Justice Belobaba is addressing in Brown v. Janssen Inc. and Dine v. Biomet Inc.
[22] Although the decision of Perell J. in Batten appears to conflict with those of Belobaba J. in Dine and Brown, I believe that they can be reconciled. Batten was a case involving allegations that an anticoagulant drug caused irreversible and sometimes fatal bleeding. In Batten, the defendant sought medical records of the representative plaintiffs related to treatment for the conditions for which they were prescribed the drug in question, patient profiles including past medical histories and medication lists, and records regarding discussions related to the risks associated with the drug. As I read Batten, Perell J. held that production of medical records will be ordered without requiring that the defendant introduce expert evidence to explain how those records are relevant where that relevance is obvious from the nature of the case being certified.
[23] In the present case, it is not obvious to me how the information and documents sought are relevant to the damages issues on the certification motion. Nor has the hospital explained how that could be so.
[24] During her cross-examination, Kendall testified that, because of her failed abortion, she had a genuine mistrust of the medical system, including the hospital. She agreed that the privacy breach aggravated that mistrust. Counsel for the hospital submits that the information and documents requested will help the court to understand how Kendall was affected by the failed abortion that preceded the privacy breach and, therefore, whether her claim is so unique as to make her inappropriate as a representative plaintiff with respect to the common issue of damages.
[25] As a backdrop to counsel’s submission, I believe that it would be helpful to set out the proposed common damage issues, which are taken from the plaintiff’s Amended Motion Record Re: Certification (using the lettering scheme contained in the motion record):
DAMAGES
(m) Are the Class Members entitled to moral or symbolic damages for the intrusion upon their seclusion? If so, what is the appropriate measure of said damages? Can these damages be determined on a global basis? (n) Are the Class Members entitled to non-pecuniary damages? If so, what is the appropriate measure of said damages? Can these damages be determined on a global basis? (o) Are the Class Members entitled to pecuniary damages? If so, what is the appropriate measure of said damages? Can these damages be determined on a global basis? (p) Are the Class Members entitled to special damages? If so, what is the appropriate measure of said damages? Can these damages be determined on a global basis? (q) Are the Class Members entitled to aggravated damages? If so, what is the appropriate measure of said damages? Can these damages be determined on a global basis? (r) Are the class members entitled to punitive damages? If so, what is the appropriate measure of said damages? How will these damages be distributed among the Class Members?
[26] Counsel for the hospital submits that a proposed representative plaintiff with a decidedly idiosyncratic claim cannot stand as a representative plaintiff for a class on a common question related to that claim. Even if I was able to accept this submission as a blanket statement, it does not explain how the transcript of the examination for discovery of the hospital’s representative in the medical malpractice action and the information sought about how much Kendall received in settlement of that action are relevant.
[27] In any event, I am not able to accept counsel’s submission. In my view, it confuses issues relating to the uniqueness of the claims of individual members of the class, as a whole, with issues relating to the uniqueness of the claim of the representative plaintiff, in particular.
[28] Counsel for the hospital relies on the decision of Winkler J. (as he then was) in Bywater v. Toronto Transit Commission (1998) 83 O.T.C. 1, [1998] O.J. No. 4913 (Ont. Ct. Gen. Div.) in support of her submission. In Bywater, the representative plaintiff was exposed to smoke from a fire which occurred in a subway, for which she required treatment. She sought to certify a class proceeding on behalf of other passengers who were similarly exposed. Winkler J. refused to certify an aggregate assessment of damages as a common issue, in part because, as he put it, “the assessment of damages in each case will be idiosyncratic” (: para. 19). Bywater does not stand for the proposition that a plaintiff with an idiosyncratic claim cannot stand as a class representative. Winkler J. did not refuse to certify the damage issue because of the idiosyncratic nature of the particular representative plaintiff’s claim. Rather, he refused to certify the damage issue as a result of the idiosyncratic nature of each class member’s claim. In fact, Winkler J. went on to certify the action as a class proceeding despite the fact that the representative plaintiff was suffering from symptoms of food poisoning at the time of the fire, a fact which might have raised causation issues in the common issues trial (: see para. 19).
[29] It is well-settled that a representative plaintiff need not be typical of the class she seeks to represent: Western Canada Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 41. A “Plain Jane” plaintiff is not required. As Winkler J. stated in Bywater, at para. 31:
A representative plaintiff need not be typical of the class or share every characteristic of every other member of the class. It is sufficient that he or she would fairly and adequately represent the interests of the class and be without interests in conflict on the common issues.
[30] Section 5(1) of the CPA sets out the criteria for certification. With respect to a plaintiff’s ability to stand as a representative of the class, that section contains only three criteria, namely:
- That the representative plaintiff is able to fairly and adequately represent the interests of the class;
- That the representative plaintiff has produced a proper plan for the proceeding; and
- That the representative plaintiff does not have an interest in conflict with the other members of the class on a common issue for the class.
[31] I accept the possibility that a representative plaintiff may have a claim that is so unique as to affect her ability to fairly and adequately represent the interests of the other members of the class, and yet not have an interest that actually conflicts with those of the other members. This would be true, for example, where the unique nature of the representative plaintiff’s claim gives rise to a risk that her claim may fail on a common issue where other members of the class might succeed. As plaintiff’s counsel conceded in the Rule 21 motion, this would have been the case if Kendall had been precluded from suing in the present action because of the release she signed in the medical malpractice action. However, this possibility will usually arise with respect to liability, and not damages. In Batten, for example, all of the records sought related to causation or consent.
[32] It is much less obvious how the uniqueness of a plaintiff’s claim could render her inappropriate as a class representative with respect to common damage issues. Damages are inherently individual. On behalf of the hospital, counsel submits that Kendall’s claim may be unique in that she has admitted that the notification of the breach of her privacy exacerbated an existing mistrust of the medical system. Counsel submits that the records will contain information about how the failed abortion affected Kendall’s view of the medical system and, therefore, provide information that is necessary to understand whether her claim is so affected by her failed abortion that she cannot represent the class members in respect of common damage issues.
[33] This submission does not explain how Kendall’s pre-existing mistrust of the medical system could possibly affect her claim for damages in a way that would negatively affect her suitability as a representative plaintiff with respect to damage issues. With respect to aggravated and punitive damages, the focus is on the conduct of the defendant. I cannot see how the uniqueness of Kendall’s situation has much, if any, bearing on the issue.
[34] Nor is it obvious how the extent to which Kendall’s situation is unique could negatively affect her ability to act as a representative plaintiff with respect to the question of whether damages should be assessed in the aggregate. As it did in Bywater, the determination of this issue depends on the uniqueness of the claims of all class members, not on the uniqueness of that of the representative plaintiff.
[35] The hospital has failed to explain how Kendall’s abortion experience could render her an inappropriate representative plaintiff. Therefore, the hospital has failed to demonstrate how the documents it seeks are relevant to the issues on the certification motion. That does not end the matter, however.
[36] Although I am not satisfied that the documents sought are relevant to Kendall’s appropriateness as a representative plaintiff on damage issues, they may still be relevant in other ways. In Parker v. Pfizer Canada Inc., 2012 ONSC 1652, another decision by Perell J., it was held that documentary discovery and cross-examination at the certification stage is permissible where it is relevant to either:
(a) the issues in the certification motion; (b) the matters raised in the affidavit of the plaintiff, even if unrelated to the issues to be decided in the certification motion; or (c) the credibility and reliability of the plaintiff`s evidence (: para.23).
[37] Justice Perell found that additional medical and other information requested by the defendant in Parker was relevant in all three of the areas set out above. Nonetheless, he denied the defendant`s request because it was “disproportionate to the needs of the certification motion and (went) beyond what is necessary to inform the certification hearing” (: para. 30).
[38] The general rule that documentary discovery and cross-examination in a potential class action will be restricted to what is necessary to inform the certification process is well-established in the jurisprudence. The rule is really nothing more than the application of the proportionality principle recognized in Rule 29.2 of the Rules of Civil Procedure.
[39] In the present case, some of the records do relate to matters raised in Kendall’s affidavit, namely the counselling and treatment she was undergoing at the time she received the letter from the hospital. However, plaintiff’s counsel has advised counsel for the hospital that the records make no mention of the notice Kendall received regarding the breach of her privacy. In light of this information, it is unlikely that the documents can provide any evidence directly relating to the facts of this case. Their relevance is limited to showing how affected Kendall was by her failed abortion and the mistrust she developed as a result. As I have already stated, the hospital has not shown how this could negatively affect Kendall’s ability to stand as a representative plaintiff regarding damages.
[40] With respect to Kendall’s credibility and reliability as a deponent, plaintiff’s counsel’s admission that there is no mention in the records of the privacy breach is all that is required to contradict Kendall’s evidence given during her cross-examination that she discussed the letter during her counselling. The records themselves are not necessary to challenge Kendall’s reliability in this regard.
[41] Requiring Kendall to produce therapeutic counselling records, a psychiatric assessment report, or a transcript of her examination for discovery in the medical malpractice action goes beyond what would be proportionate to the needs of the certification motion and what is necessary to inform the certification hearing.
[42] There has already been at least one intrusion into Kendall’s privacy in this case. I do not believe it is necessary to allow another at this stage.
CONCLUSION
[43] I am not satisfied that the information and documents requested are relevant to the issues to be determined in the certification motion. While some of the documents do relate to matters raised in Kendall’s affidavit and are relevant to her credibility and reliability as a deponent, their production would be disproportionate to the needs of the certification motion.
[44] The hospital’s motion is, therefore, dismissed.
[45] If the parties are unable to agree on the matter of costs, written submissions may be made as follows:
(1) The plaintiff may make submissions, limited to five typewritten pages, exclusive of attachments, within 20 days of the date of the release of these reasons; (2) The hospital may make submissions, similarly limited, within 10 days of the receipt of the plaintiff’s written submissions; and (3) The plaintiff may make any necessary reply, similarly limited in length, within 10 days of the date of receipt of the hospital’s written submissions.
Ellies J. Released: October 18, 2016