In the recent case of Dine v Biomet, 2015 ONSC 1911, the Ontario Superior Court of Justice has provided clarity with respect to the extent to which medical records in a class action product liability case should be produced before certification. Specifically, the Court ruled that production of medical records (or any documentary production) will only be ordered pre-certification if the defendant can show that the requested documentation is relevant to one or more of the issues on certification.

The Facts

In Dine v Biomet, the representative plaintiff claimed that the hip implants used for two hip replacements were defectively designed and manufactured by Biomet and that Biomet failed to provide adequate warning. The representative plaintiff provided some medical records and evidence at the outset.  The defendants, however, requested further production of the plaintiff’s medical records. The Court held that the defendant failed to showhow or why these additional medical records would assist the Court or were in any way relevant to the issues on certification. 

Some Guidelines For Practice

In arriving at this decision, the Court set out the following guidelines to assist defendants of product liability class proceedings when bringing motions for production:

  • Each decision regarding pre-certification production is driven by the circumstances of the particular case and requires a degree of balancing, so as to be fair to both parties;
  • The defendant must show that the additional requested productions are in some way relevant to the issues on certification;
  • The defendant must explain how the requested records are relevant - it is not enough for the defendant to assert that the medical records may be relevant to certification;
  • The certification motion is a procedural motion that has nothing to do with the merits of the proceeding;
  • Class actions are designed to proceed in stages – certification; the issues trial; the individual assessments – and the nature and focus of permitted discovery at each stage should vary accordingly;
  • For class actions to remain a viable vehicle for improved access to justice, it cannot be front end-loaded at the certification stage with evidence that is irrelevant; and
  • The current rule is also applicable to production motions before any cross-examination of the proposed representative plaintiff.