The recent decision of Ahlquist v. GlaxoSmithKline Consumer Healthcare, 2015 SKQB 192, concerns the scope of pre-certification disclosure in class actions.

Ahlquist involved denture adhesives manufactured by GlaxoSmithKline Consumer Healthcare Inc. (“GSK”) and Procter & Gamble Inc. (“P&G”) (collectively, the “Defendants”) and known respectively as “Poligrip” and “Fixodent” (collectively, the “Adhesives”).

Ms. Ahlquist, the representative plaintiff, had used the Adhesives over a prolonged period of time and began experiencing symptoms of a neurological disorder including “pins and needles sensations, numbness in her arms and legs…and sharp bursts of pain.” Ms. Ahlquist alleged that zinc contained within the Adhesives was the cause of her injuries. Additionally, she asserted that the Defendants were negligent in marketing Adhesives containing zinc because they “knew or ought to have known, about the risks, injuries and losses to consumers and users that could result from the use of these denture adhesive products.”[1]

In her application for class certification Ms. Ahlquist sought to define the class as “all persons in Canada who have purchased or used the Adhesives.” In support of her application, Ms. Ahlquist filed two affidavits: her own, and an affidavit of Vancouver neurologist Dr. Robert Douglas Keyes (the “Keyes Affidavit”). The Keyes Affidavit focused on the general impact of zinc toxicity in the human body. Although Dr. Keyes had never personally examined Ms. Ahlquist, the Keyes Affidavit stated that her symptoms were consistent with zinc overexposure.

In response, the Defendants challenged Ms. Ahlquist’s assertion that the Adhesives were the source of Ms. Ahlquist’s ailments. They argued that they could not respond to Ms. Ahlquist’s application for certification fairly and fully without production of Ms. Ahlquist’s medical, dental and pharmacy records as well as any other documents that disclosed Ms. Ahlquist’s purchase of the Adhesives.

To determine the appropriate scope of pre-certification disclosure, the Court conducted a wide-ranging analysis of the case law respecting pre-certification disclosure which it then condensed into a two-part test:

  1. In the first step, a court assesses the probability that the eventual certification inquiry will be assisted by the disclosure and production of the information sought. This requires an assessment as to whether the information assists in establishing, or not, one of the certification requirements, namely that:
    1. the pleadings disclose a cause of action;
    2. there is an identifiable class;
    3. the claims of the class members raise common issues;
    4. a class action would be the preferable procedure for resolution of the common issues; and
    5. there is an appropriate representative plaintiff.

If the answer to this first component of the test is yes, then an order for disclosure and production will generally follow.

  1. If the answer is less conclusive, or even if the answer is no, the second step is triggered. At this step, the Court may still grant the order if it is seen as necessary to protect the fairness of the proceedings and to afford the defendant an opportunity to meet the plaintiff’s case on certification. In considering the question of fairness, and without limiting other factors, the Court could properly consider the degree to which the information is unlikely to assist the certification inquiry, the apparent propriety (or not) of the defendant’s motion for disclosure and considerations of proportionality.[2]

In ordering Ms. Ahlquist to disclose and produce the information sought by the Defendants, Justice Elson noted that the issue of whether the Adhesives had actually caused the injuries complained of would be a common issue amongst the class members. Therefore, the question of whether the Adhesives had caused Ms. Ahlquist’s injuries was relevant to the Court’s determination of whether she was an appropriate representative plaintiff for the proposed class.

The two-part test set forth in Ahlquist represents a useful clarification of the law respecting pre-certification disclosure in class actions and is likely to be applied by other courts in the future.