No need for a “Plain Jane Plaintiff”: Pre-Certification Discovery and Challenging the Representative Plaintiff


Just how “representative” should a representative plaintiff be? That question was at the heart of a pre-certification discovery motion in Daniells v McLellan, a privacy class action. Here, the defendant sought to obtain disclosure of a representative plaintiff’s medical records to prove that her claim was so unique as to affect her ability to fairly and adequately represent the interests of the class. The court dismissed the motion, but left open a way in which defendants might challenge representative plaintiffs going forward.

Case in Context: Privacy Class Actions

This as yet uncertified class action is one of several recent privacy-related class actions that sprung up after Hopkins v Kay paved the way. The plaintiffs seek damages for intrusion upon seclusion on behalf of about 5,800 people whose medical information was improperly accessed by Melissa McLellan, a nurse at North Bay Regional Health Centre (the “Hospital”). For her actions, McLellan would become the first person charged under the Personal Health Information Protection Act. McLellan and the Hospital are co-defendants in this proceeding.

In this case, the Hospital sought to compel one of the proposed representative plaintiffs, Andrea Kendall, to produce records of her visits with a counsellor and a psychologist, and to compel production of materials from a previous suit that Kendall had settled with the Hospital.

The Hospital argued that these materials were relevant to the common issues of damages, and to whether Kendall could act as a satisfactory representative plaintiff in the suit. The Hospital contended that, due to her previous medical malpractice suit and her stated distrust of medicine, Kendall’s damages claim was “decidedly idiosyncratic”. As such, Kendall was not fit to stand as a representative plaintiff.

Kendall testified that she had discussed the privacy breach with her counsellor. However, plaintiff’s counsel subsequently wrote to counsel for the hospital saying that he had reviewed the counsellor’s notes, and they contained no references to the privacy breach.

Pre-Certification Discovery and the Representative Plaintiff

Ellies J. reviewed previous decisions on pre-certification discovery, noting that they were not entirely consistent. In Dine v Biomet Inc, Belobaba J. found that production of documents will only be ordered before certification if the defendant can explain how the documents are relevant to one of the issues at the certification motion. But in Batten v Boehringer Ingelheim (Canada) Ltd, Perell J. came to a slightly different conclusion, writing, “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.”

Ellies J. attempted to reconcile these standards by holding that production of the representative plaintiff’s records will be ordered without recourse to expert evidence when the relevance of those records is obvious from the case being certified. In this case, the relevance of Kendall’s medical records to the certification motion was not obvious, and he denied production.

The court also emphasized a representative plaintiff need not be typical of the class she seeks to represent, saying, “A ‘Plain Jane’ plaintiff is not required.” However, Ellies J. did accept the possibility that a representative plaintiff could have a claim so unique as to affect her ability to fairly represent the interests of other class members, and yet not have an interest that actually conflicts with those of the other members. This would be true where the unique nature of the representative plaintiff’s claim gives rise to a risk that her claim might fail as a common issue where other members of the class might succeed.

Implications

This decision illustrates the difficulties faced by defendants seeking to challenge the suitability of a representative plaintiff before certification. However, it also sets out the standard defendants must meet in order to obtain pre-certification disclosure, and outlines a possible route by which a representative plaintiff might be found unfit. Defendants who can make a case that a representative plaintiff’s claim will fail on a common issue where other class members might succeed may achieve success obtaining records to buttress such an argument – even before certification.

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Editors

Deborah Glendinning

Partner, Litigation

Sonia Bjorkquist

Partner, National Chair, Litigation

Éric Préfontaine

Partner, Litigation

Christopher Naudie

Partner, Litigation

Craig Lockwood

Partner, Litigation

Tristram Mallett

Partner, Litigation

Karin Sachar

Partner, Litigation