Production of the plaintiffs’ medical and pharmaceutical records at the pre-certification stage has been a hot topic in class action litigation across Canada. Sweetland v Glaxosmithkline Inc, 2014 NSSC 216, a decision of Justice Wood, is Nova Scotia’s first reported case on point. Justice Wood took an expansive approach in granting the defendants’ request for disclosure before certification – a welcome development for class action defendants seeking clarification of claims as early as possible.
The proposed representative plaintiffs in Sweetland allege that the defendants are liable for damages arising from the plaintiffs’ use of a diabetes drug, particularly an increase in the risk of heart attack. They have not yet moved for certification under the Nova Scotia Class Proceedings Act, SNS 2007, c 28. Justice Wood recently heard several motions in his role as case management judge, including the defendants’ motion for production of the plaintiffs’ medical and pharmaceutical records.
The requested records related primarily to the plaintiffs’ diagnosis of diabetes and their prescription history, and records of any “cardiovascular events” they suffered. The defendants argued that such records could lead to information that would assist the court on certification; the plaintiffs submitted that the information sought was not necessary or relevant to certification. In the end, Justice Wood agreed with the defendants and ordered disclosure, but the test he applied to get there—and how it compares to other cases—warrants further analysis.
Jumping ahead a bit: The test for certification
A decision to certify the claim as a class action is really a decision about the proper “form” of the proceeding: The certification judge must decide that a class action is the best procedural mechanism to get the case before the court.
The plaintiff must prove five main elements to have her claim certified as a class action under section 7(1) of the Class Proceedings Actand its equivalents:
- The pleadings disclose a cause of action;
- There is an identifiable class;
- The claims of the class members raise common issues;
- A class proceeding would be the preferable procedure to resolve the dispute; and
- There is an appropriate representative plaintiff.
Because certification is meant to be procedural and not substantive, the court cannot delve into the merits of the claim. However, there must still be some sort of evidentiary record to enable the certification judge to decide whether the elements have been proven. Evidence can’t be considered to determine whether the pleadings disclose a cause of action, but it has been consistently held that “the class representative must show some basis in fact” for the other certification requirements.
It is unclear how much, and what kind of, evidence may be put forward on the certification motion. As a result, courts have grappled with how the “some basis in fact” standard translates backwards into pre-certification disclosure obligations.
Going back to the pre-certification stage
In Nova Scotia, the definition of “class proceeding” in section 2(d) of the Class Proceedings Act includes proceedings at the pre-certification stage: It “means a proceeding under this Act, even if an application for certification of the proceeding as a class proceeding has not yet been determined by the court.” This situates a motion for pre-certification disclosure under the broader class proceedings umbrella:
 … as Saunders J.A. observed in MacKinnon v. National Money Mart Co., supra, at para. 33, an action commenced under the Act is, from the beginning, “an action with ambition.” It is initiated for the purpose of being certified as a class action and must be assessed in that light.
While pre-certification disclosure is not an automatic right, Justice Rothstein recently commented in Pro-Sys Consultants Ltd v Microsoft Corporation that “document production may be ordered at the discretion of the applications judge.”
In Nova Scotia, this discretion is grounded in section 15 of the Class Proceedings Act:
The court may at any time make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms or conditions the court considers appropriate.
It is settled, then, that the court can order the plaintiffs to disclose documents, including medical records, in certain circumstances. The question then becomes, what are those circumstances?
Competing tests for pre-certification disclosure
At the very least, one would expect the test for ordering pre-certification disclosure to be linked to the requirements for certification itself, including the “some basis in fact” standard. But in practice this connection can be difficult to make. In Roveredo v Bard Canada Inc, Justice Strathy (as he then was) nicely explained the tension that can arise:
 It is not always easy to separate, prior to the certification hearing, where an examination of the “basis in fact” ends and an impermissible excursion into the merits begins. Nor is it always easy to say whether a particular piece of evidence, viewed in isolation, will assist the court in addressing the certification test. It is undesirable that representative plaintiffs be subjected to burdensome production motions and extensive cross-examinations on what is meant to be a procedural motion. On the other hand, the process must be fair and the defendant must be given a reasonable opportunity to respond to the plaintiff’s evidence. As well, the court cannot address certification in a vacuum. The apparent commonality of the issues and preferability of the procedure may appear obvious when looking at the pleadings or a limited record, but may become less obvious when a full and balanced record is available.
This collection of considerations has led to varying results in the case law on medical and pharmaceutical records especially. There is no consensus on the applicable test. Justice Wood acknowledged these “differing judicial opinions” in Sweetland.
These differing opinions on when production can be ordered fall on a spectrum of sorts.
At one end of the spectrum are the many British Columbia cases suggesting that pre-certification disclosure will only be ordered in“exceptional” or “extraordinary” circumstances. This has been interpreted as a “necessity” test:
 Two principles emerge from the British Columbia authorities: first, that the burden of showing that records should be disclosed before the certification hearing is on the party applying for it; second, the standard to be met on such an application is to show that the records sought are necessary to inform the certification process.
 I conclude that necessity … must mean more than merely helpful or informative. I say that because of the clear separation between the procedural aspects of class proceedings, and the certification application is purely procedural, and the consideration of the merits of the claims, which comes after certification, if it is granted. So wherever the threshold is set, it must be high enough to protect the procedural certification process from becoming bogged down by evidence that goes to the merits.
Justice Wood’s decision in Sweetland lies on the more permissive end of the spectrum. He did not require exceptional circumstances, or proof that the medical and pharmaceutical records would be necessary for the certification motion. Instead, Justice Wood established a threshold of “potential relevance of the medical and pharmaceutical records to the questions which need to be answered on the certification motion.” He stated:
 In the present case, I am satisfied that the requested disclosure ought to be produced. Whether it results in relevant information which forms part of the evidence on the certification motion remains to be determined. The plaintiffs have made issues with respect to their medical and pharmaceutical records relevant by referring to their medical history in their affidavits to be filed on the certification motion. I am satisfied that the information requested is focused on those issues and does not amount to an unsubstantiated fishing expedition.
The “potential relevance” test looks like the old “semblance of relevancy” test applicable under the Nova Scotia Civil Procedure Rules(1972), which has been abandoned since the 2009 Rules came into force in favour of the stricter “trial relevance” test. However, Justice Wood has suggested elsewhere that a “more liberal” standard should apply at the disclosure stage of regular civil litigation, and the Court of Appeal recently endorsed that approach in Laushway v Messervey:
 The observations of Wood, J. in a subsequent decision in Saturley v. CIBC World Markets Inc., 2012 NSSC 57 are also instructive. In particular, I agree with Justice Wood’s comments at ¶9-10 where he said:
 In my view, the Court should take a somewhat more liberal view of the scope of relevance in the context of disclosure than it might at trial. This is subject, of course, to concerns with respect to confidentiality, privilege, cost of production, timing and probative value.
 At the disclosure and discovery stage of litigation, it is better to err on the side of requiring disclosure of material that, with the benefit of hindsight, is determined to be irrelevant rather than refusing disclosure of material that subsequently appears to have been relevant. In the latter situation, there is a risk that the fairness of the trial could be adversely affected.
There is a nice consistency between this view of disclosure in traditional civil litigation in Nova Scotia, and the Sweetland treatment of pre-certification disclosure in the class action context.
The advantage of contextual tests like these is their flexibility. The more rigid “exceptional circumstances” / “necessity” test will almost never be met, as the BC cases show. While it may be that the two ends of the spectrum are not all that far apart in theory, a standard of relevance, or potential relevance, would seem to be more adaptable and appropriate in practice, when considered against a backdrop of procedural fairness – and the test for certification.
As Justice Strathy concluded in Roveredo, supra: “Ultimately, the decision is driven by the circumstances of the particular case and requires a degree of balancing, so as to be fair to both parties.”
Pre-certification is a somewhat awkward phase. Preparations for certification usually occur behind the scenes and not in the courtroom, but sometimes the court is called in before the motion is ready to be heard. When this happens, the applicable procedural rules are not always certain.
It has been suggested that it is the plaintiffs’ “risk to run” if they want to “procee[d] to a certification hearing on an inadequate evidentiary record, risking denial of their application to certify.” But that kind of approach risks leaving the defendants inadequately prepared for certification, and leaving the certification judge in the dark. Certification has been the main battleground in Canadian class action litigation, and fairness to both sides might mean that disclosure has to happen sooner rather than later.