COURT FILE NO.: CV-19-00631903-00CP
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C.
Plaintiffs
- and -
MARTIN JUGENBURG and DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION
Defendants
Counsel: Margaret Waddell, Tina Q. Yang, Kate Mazzucco, Josh Nisker, Paul Miller, and Valérie Lord for the Plaintiffs Nina Bombier, Paul-Erik Veel and Brianne Westland for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: April 12, 2021
PERELL, J.
REASONS FOR DECISION
[1] This is a preliminary motion at the outset of a certification motion. The motion concerns the Defendants’ proffering of the complete clinical medical chart and medical records: (a) of the Plaintiffs, A.C., G.C., and J.C., and (b) of J.L. and S.S., two deponents for the Plaintiffs’ certification motion.
[2] In their affidavits, A.C., G.C., J.C., J.L., and S.S. described the factual circumstances of their attendance at the medical clinic operated by the Defendants.
[3] The medical record evidence was included in the responding affidavits of the Defendant Dr. Martin Jugenburg.
[4] Save for documentation with respect to certain consent forms signed by A.C., G.C., J.C., J.L., and S.S., respectively, the Plaintiffs move to have the evidence struck from the record and to have the court direct Dr. Jugenburg to deliver affidavits with this evidence expunged.
[5] The Plaintiffs submit that Dr. Jugenburg has contravened the Personal Health Information Protection Act, 2004[^1] and Rule 25.11 of the Rules of Civil Procedure,[^2] which states:
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
[6] For the reasons that follow, for the purposes of the certification motion, save for the consent forms and notes about consenting to an internet posting, I strike the medical evidence as irrelevant and inadmissible for the purposes of the certification motion.
[7] The medical records already have been sealed in the court file and redacted motion records have been filed for the purposes of the public record. It is not necessary to direct the Defendants to file replacement affidavits.
[8] The immediate case is a breach of privacy action pursuant to the Class Proceedings Act, 1992.[^3] The Plaintiffs, G.C., J.C., and A.C., sue Martin Jugenburg, who is a plastic surgeon, and his corporation, Dr. Martin Jugenburg Medicine Professional Corporation. Dr. Jugenburg carries on an entrepreneurial medical practice through his professional corporation that operates a clinic known as the Toronto Cosmetic Surgery Institute. A.C., G.C., J.C., J.L., and S.S. were potential patients or patients at the Defendants’ clinic.
[9] The Plaintiffs propose the following class definition:
All patients who attended at the Toronto Cosmetic Surgery Institute from January 1, 2010, to December 13, 2018, and:
(a) whose images were posted on the internet, published or otherwise displayed in a public setting by the defendants, and who claim the publication was without their valid consent (the “Internet Class” or “Internet Class Members”); and/or
(b) attended at the Toronto Cosmetic Surgery Institute during the time from January 1, 2017, until December 13, 2018, when video surveillance cameras were in operation (the “Surveillance Class”).
[10] The Plaintiffs and the putative Class Members have two major grievances for which they seek compensation. The first major grievance, which concerns all of the putative Class Members, may be labelled the Surveillance Complaint for the Surveillance Class. For the Surveillance Complaint, it is alleged that there are video cameras installed throughout the clinic, and the Plaintiffs allege that the Defendants used those video cameras to surreptitiously collect video recordings of nude and semi-nude Class Members without their consent.
[11] The second major grievance may be labelled the Social Media Complaint for the Internet Class. This second major grievance concerns a subset of the putative Class Members.
[12] For the Social Media Complaint, it is alleged that the Defendants obtained photographic images of patients, some of them nude or semi-nude under the false pretense that the images would be used only for the purposes of medical care. Some of these images obtained under false pretense were used to market the clinic by postings on social media platforms. It is alleged that the posting of these images was without valid patient consent.
[13] The Plaintiffs sue for: (a) breach of confidence; (b) breach of fiduciary duty; (c) breach of trust; (d) intrusion upon seclusion; (e) negligence; (f) public disclosure of private facts; and (g) unjust enrichment. The Plaintiffs claim damages of $50 million and punitive damages of $25 million.
[14] For the purposes of this preliminary motion, it should be emphasized and kept in mind that the Defendants are not being sued for medical misadventures. This action is exclusively about protecting patient privacy in the provision of medical services.
[15] Although it will always and inevitably be part of the factual narrative of the immediate class action that the circumstances of what brought the patients to the clinic will be put in evidence, it does not follow that the evidence will be material and relevant to the issues that have to be decided on the certification motion.
[16] In the immediate case, save with respect to the matter of the patient’s consent to being surveilled or to the patient having personal images posted on the internet, the interactions between the patients and Dr. Jugenburg with respect to their medical treatment is not what the certification motion is about. For many, if not most of the putative class members, Dr. Jugenburg’s treatment of them as a medical matter and their medical history will not ever be material issues in this litigation.
[17] In the immediate case, the particulars of what brought the patients to the Defendants’ clinic, the particulars of any medical examinations and of any treatments the patients received, and the particulars of medical outcomes, bad, good, or excellent, are irrelevant to the certification criteria.
[18] It is to be kept in mind that the preliminary motion now before the court is not about the scope of cross-examinations. While the general rule is that a party can cross examine on a matter raised in and put in issue by the deponent in his or her affidavit, even if it is irrelevant and immaterial to the motion before the court,[^4] the matter at hand is not about the scope of Dr. Jugenburg’s questioning of the deponents.
[19] The matter at hand is that Dr. Jugenburg is seeking to introduce non-material, irrelevant, and at this juncture embarrassing evidence.
[20] It is not correct for Dr. Jugenburg to say that because A.C., G.C., J.C., J.L., and S.S. deposed about their interaction with him about their medical treatment, then it must be the case their treatment is a material issue, or, ipso facto, their evidence made their medical records a material issue for which he has a right to respond.
[21] For instance, had A.C., G.C., J.C., J.L., and S.S. deposed about concerns about the sterility safeguards at the clinic, then that evidence would not have opened up that topic as an issue to be addressed at certification, although Dr. Jugenburg might be entitled to cross-examine them about this irrelevant topic.
[22] The Clinic’s medical charts of the five witnesses contain detailed and highly sensitive personal health information, including family medical histories, treatment plans, desired aesthetic objectives, notes related to the witnesses’ physical examinations, and surgical notes. While it is possible that later in this proceeding complete medical records may be relevant, the highly sensitive information about A.C., G.C., J.C., J.L., and S.S. is not relevant to the certification criteria, which are not meant to adjudicate the merits of the class members’ claims or the quantification of their damages.
[23] The Defendants are engaged in the tactic of attempting to refute commonality by proving that each class member is a unique human being who will have a unique answer to the questions of why, when, where, and how they had an interaction with the defendant. Those questions obviously are not common questions, and the Defendants’ tactic just proves facts that are already tautological and could just as easily be proven by logical argument rather than empirical evidence.
[24] Judges on a certification motion do understand that class members are not clones and even if they were clones, judges understand that individual clones may have had different experiences with the defendant. Commonality is not disapproved by finding instances of difference.
[25] This is not to say that in the immediate case, that the Defendants will be unable to refute commonality in the circumstances of the immediate case, but it is to say that having regard to the subject matter of the immediate class action, the Defendants do not need the individual medical records of A.C., G.C., J.C., J.L., and S.S. to contest commonality or to contest any of the other certification criterion. It is to say that there is nothing unfair about denying the Defendants an opportunity to discomfort their foes with evidence that is irrelevant at this juncture of a proposed class action.
[26] In the context of class action litigation, courts deny requests for production of medical records on a certification motion if the requested evidence does not meet the threshold of relevance to the certification criterion.[^5]
[27] Although the case at bar is not about defective medical treatment, it is useful to note that in products liability class actions about medical devices or drugs, pre-certification motions for production of medical records have been dismissed on the basis that issues relating to individual class members contained in medical records do not assist at the certification stage when the merits of an action are not in issue.[^6] In products liability class actions involving an allegedly defective medical device or drug, production of medical records will be ordered before certification only in exceptional circumstances.[^7]
[28] Dr. Jugenburg is already the custodian of the medical records, and he does not need a production order. Dr. Jugenburg submits that the case law about the production of medical records for certification motions is distinguishable from the case at bar because those were cases where a party was moving for records that they did not have but wished to rely on for the certification motion. However, this submission totally misses the point that the medical records were not produced in the products liability cases when the medical records were not useful or admissible for the purposes of the certification motion.
[29] Should the action be certified and should the Plaintiffs be successful at the common issues trial, then individual medical records might be relevant at individual issues trials with respect to individual damage claims for personal injuries. But the point to emphasize is the immediate action is pre-certification and the medical records of A.C., G.C., J.C., J.L., and S.S. are irrelevant to the certification motion.
[30] In his factum for this motion, Dr. Jugenburg submits that because the Plaintiffs have described the care and treatment they received at the Clinic, it was important to him that he respond and describe the care that he and the Clinic had provided. Dr. Jugenburg submits that it is “the epitome of unfairness” that they are entitled to raise issues of his conduct and deliver their own affidavits describing the care they received from him, but that he is not entitled to respond with the best available evidence, the contemporaneous and detailed medical records.
[31] With respect, this submission is not supportable. There is no merit to Dr. Jugenburg’s distraught lamentations that striking the complete medical records will deny him the opportunity to defend himself at the certification motion. Striking inadmissible evidence is not prejudicial. Apart from their privacy concerns, the Plaintiffs do not demean or disparage Dr. Jugenburg’s conduct and for the purposes of the certification motion, which is the only matter now before the court, there is no need for him to respond and describe the care that he and the Clinic provided to A.C., G.C. and J.C., and to J.L. and S.S.
[32] Having regard to the above conclusions, I need not make any finding on the Plaintiffs’ submission that Dr. Jugenburg’s proffering of their medical records was a bullying tactic, although I do say that the Plaintiffs’ lamentations about an abuse of process have far more traction than the Defendants’ lamentations about due process.
[33] Having regard to the above conclusions, it is not necessary for me to comment on whether the impugned evidence contravenes the Personal Health Information Protection Act, 2004.
[34] I therefore conclude that Dr. Jugenburg’s evidence about the medical records contravenes Rule 25.11.
[35] For the above reasons, for the purposes of the certification motion, save for the consent forms, save for any express statements found in the medical records about a patient’s consent to have his or her images posted on the Internet, I strike the medical record evidence.
[36] With respect to the costs of this motion, I order the costs of this motion to the Plaintiffs in any event of the cause of the certification.
Perell, J.
Date of Judgment: April 12, 2021.
Released: April 27, 2021.
COURT FILE NO.: CV-19-00631903-00CP
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C.
Plaintiffs
- and -
MARTIN JUGENBURG and DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION
Defendants
REASONS FOR DECISION
PERELL J.
Released: April 27, 2021
[^1]: S.O. 2004, c. 3, Sch. A. [^2]: R.R.O. 1990, Reg. 194. [^3]: S.O. 1992, c. 6. [^4]: Guestlogix Inc. v. Hayter, 2010 ONSC 5570 at para. 16; Logan v. Canada (Minister of Health), [2001] O.J. No. 6289 (Master); Ferring Inc. v. Richmond Pharmaceuticals Inc., [1996] O.J. No. 621 at paras. 14–15 (Div. Ct.); Wojick v. Wojick (1971), 1971 CanLII 538 (ON SC), 2 O.R. 687 at p. 688 (H.C.J.). [^5]: Daniells v. McLellan, 2016 ONSC 5958: Batten v. Boehringer Ingelheim (Canada) Ltd., 2015 ONSC 7821; Dine v. Biomet, 2015 ONSC 1911. [^6]: Miller v. Merck Frost Canada, 2011 BCSC 1759, leave to appeal refused 2012 BCCA 137; Pearson v. Inco Ltd. (2002), 22 CPC (5th) 167 (SCJ). [^7]: Bartram (Litigation guardian of) v. Glaxosmithkline Inc., 2011 BCSC 1174.