In Hemeon v. South West Nova District Health Authority, the Supreme Court of Nova Scotia recently denied the defendant’s motion for production of the representative plaintiff’s medical records. The decision contains an important discussion regarding the scope of discovery and document production in a certified class action.

Certified in 2013, the Hemeon class action involves an alleged breach of privacy resulting from a former employee of the defendant allegedly committing the tort of “intrusion upon seclusion” by accessing the medical records of members of the class in an unauthorized manner.

The Scope of Discovery is Limited by the Common Issues

During discoveries, the representative plaintiff responded to questioning that she had made efforts to attend hospitals other than the hospital in question since learning of the alleged breach of her privacy. The defendant’s counsel asked for production of her medical records to confirm this answer.

In denying the defendant’s request for production, the Court noted that while the rules of civil procedure subject litigants to broad obligations of discovery and disclosure, class actions require additional considerations, particularly given their bifurcated nature, where there is first a trial on common issues and thereafter a mechanism for resolution of individual issues. The Court agreed with a number of recent Ontario and Alberta decisions that such bifurcation requires that the scope of discovery in a certified class action is limited by the common issues; it is the certification order as informed by the pleadings, and not the pleadings at large, that define relevance for the first phase of a class action trial.

Notably, the Court rejected the British Columbia approach—affirmed by the British Columbia Court of Appeal in its 2013 decision in Stanway v. Wyeth Canada Inc.—that the scope of examination for discovery in the context of class proceedings shall be defined broadly by the usual rules regarding materiality and relevance, without being limited strictly to the common issues.

Individual Evidence is Not Necessary for Determining the Elements of Emerging Privacy Torts

Given that the tort of “inclusion upon seclusion” has not been formally recognized in Nova Scotia, the defendant in Hemeon argued that the Court required the representative plaintiff’s medical records in case the Court decided to interpret the tort as requiring elements of “anguish and suffering” to the plaintiff. The Court was not persuaded that determining the elements of the tort would require such disclosure, given that the exercise of determining the elements of the tort would essentially be a policy decision, uninfluenced by the subjective experience of a single representative plaintiff.

In any event, the Court also appeared convinced that even if “anguish and suffering” were found to be an element of the tort—which the Court underlined was not the case in any other Canadian jurisdiction where intrusion upon seclusion had been recognized—the Court still would not require evidence before it of the plaintiff’s individual distress in order to decide the tort as a common issue. The Court noted that so long as the other recognized elements of the tort were established, including a finding that a reasonable person would regard the invasion of privacy as highly offensive and a cause of distress or anguish, then it would generally be presumed that the individual claimant had, in fact, suffered such distress or anguish.

Evidence of Individual Damages is Not Relevant to the Common Issue of Aggregate Class Damages

The defendant also submitted that the plaintiff’s medical records would be relevant to the certified common issue of whether damages could be assessed in the aggregate, but the Court held that documents relating to the individual distress and individual damages of the plaintiff were not relevant to the issue of whether aggregate damages were available, particularly where such evidence would not relate directly to the conduct of the defendant that caused the damage.

The Litigation Plan Does Not Expand Relevance Beyond the Common Issues

Finally, the defendant noted that Justice Perell of the Ontario Superior Court had stated in Pennyfeather v. Timminco Ltd. that “the litigation plan and the certification order will define the nature of the common issues trial…”. On this basis, the defendant took the position that because the litigation plan in Hemeon included a reference to the plaintiff’s distress arising from the alleged privacy breaches, the plaintiff’s medical records were relevant to the common issues and to the credibility of the plaintiff. The Court noted that the litigation plan was developed long before the common issues trial and that it was not satisfied that the reference in the litigation plan should displace the basic principle that the representative plaintiff’s individual distress is of no apparent relevance to the certified common issues.

Conclusion

The decision of the Supreme Court of Nova Scotia in Hemeon contains key considerations for approaching discovery and document production in class actions, including the following:

  1. The scope of discovery in class actions is limited by the common issues in most jurisdictions in Canada, with British Columbia being a major exception, wherein the scope of discovery is defined broadly based on materiality and relevance to the pleadings;
  2. Where a class action involves an alleged tort, the scope of discovery does not necessarily extend to individual evidence relating to all elements of the tort, particularly where the tort is an emerging one not formally established in a given jurisdiction;
  3. Evidence of individual damages will not be discoverable simply on the basis that the availability of aggregate damages is a common issue, particularly where such evidence does not relate directly to the conduct of the defendant that caused the damage; and
  4. Statements in a litigation plan will not necessarily expand the scope of relevance and materiality beyond the common issues set out in a certification order.