No Merit: Scope Of Pre-Certification Disclosure Remains Limited
| Published date | 21 July 2023 |
| Subject Matter | Litigation, Mediation & Arbitration, Class Actions, Professional Negligence |
| Law Firm | McMillan LLP |
| Author | Ms Joan Young and Gray Morfopoulos |
The tension between limits on pre-certification document disclosure and access to a proper evidentiary record to ensure a fair certification hearing was once again before the court in Mentor Worldwide LLC v Bosco, 2023 BCCA 127, a medical negligence class action. The B.C. Court of Appeal rejected a defence application for disclosure of the representative plaintiffs' medical records in advance of certification, determining that pre-certification disclosure of the medical records was not necessary to the certification process.
Background
The proposed class action underlying this case is an action on behalf of Canadians who received Mentor silicone or cohesive gel breast implants. The plaintiffs in this action allege that there are defects in the breast implants that the defendant failed to warn about, including anaplastic large cell lymphoma, connective tissue disease and autoimmune/inflammatory syndrome induced by adjuvants or breast implant illness.
Procedural History
As part of the class action certification process, the three representative plaintiffs each affirmed affidavits attesting to having received the defendants' breast implants and subsequently developed the aforementioned health conditions.
The defendants retained an expert to assist with determining:
- Whether the plaintiffs were implanted with the defendants' breast implants and have any of the alleged health conditions;
- Whether the plaintiffs' symptoms are caused by the same medical condition and whether that condition has a common cause and
- What the possible causes of the plaintiffs' symptoms could be.
The defendants' expert stated that he was unable to answer these questions based on the information provided in the plaintiffs' affidavits and would need access to their medical records to provide his expert opinion.
The defendants then applied for production of various types of medical records from the plaintiffs on the basis that they were necessary to ensure adequate evidence at the certification hearing.
The chambers judge (who was also the assigned case management judge) rejected the defendants' application on the basis that the medical records were not necessary to inform the certification process as they were relevant only to the merits of individual claims and not the class as a whole.
The Court of Appeal Decision
The role of pre-certification document discovery
On appeal, the court stated that in class proceedings, parties do not have an automatic right to document discovery prior...
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