Class Actions As Clone Wars?

• Published date: 09 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Class Actions, Professional Negligence, Biotechnology & Nanotechnology
• Law Firm: Siskinds LLP
• Author: Mr James Boyd

Ontario Court Rejects Notion that Class Members
Must Be "Clones."

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.¹

The Supreme Court of Canada has described the "commonality requirement" as the central notion of a class action – in order to be certified (i.e. allowed to proceed to a decision on the merits), a class action must raise common issues of fact or law for the class. To be a common issue, the answers to the questions raised by the issue must be capable of extrapolation, in the same manner, to each member of the class. An issue is not common if its resolution is dependent upon individual findings for each class member.

But if commonality is at the core of a class action, do the class members need to be "clones" who had identical experiences with the defendant in order for the case to move forward?

Or can a class with a "significant level of individuality" – like a "bad batch" of clones with unique genetic mutations – still prove successful?

The Ontario Superior Court of Justice recently confirmed that class members do not need to be "clones" for a class action to be certified, in a case coincidentally involving cosmetic enhancements.

In G.C. v. Jugenburg,² the Defendants attempted to introduce individual medical records of class members as evidence to refute commonality by proving that each class member was a unique human being who had different interactions with the Defendants. However, the Ontario Superior Court of Justice struck the evidence and ended the possibility of prolonged "clone wars" – i.e. potential unresolved arguments over the need for class members to be perfectly identical – by dispelling the notion that judges would require the class to be "clones" to establish commonality.

Cameras, consent, and cosmetic surgeries: The facts of Jugenburg

The class action at hand involved a plastic surgeon and his medical clinic who allegedly violated the privacy rights of patients.

In 2018, investigative reporting by the CBC revealed that the Toronto Cosmetic Surgery Institute clinic operated by Dr. Martin Jugenburg, whose practice consisted of breast augmentations, buttock lifts, and various other cosmetic procedures, had video surveillance cameras installed throughout the clinic, including in waiting, consultation...