On March 20, 2015, Justice Belobaba released his reasons in Dine v Biomet, a motion concerning the production of medical records prior to a certification motion.

The case is a proposed product liability class action concerning several models of the defendants' metal-on-metal hip implants. The plaintiff has alleged that the hip implants are defectively manufactured, defectively designed and that the defendant has failed to adequately warn of the dangers associated with its products.

Justice Belobaba found that to obtain an order for production of medical records before certification and before the cross-examination of a proposed representative plaintiff, such records must be relevant to the issues on the certification motion (i.e., sections 5(1)(a)-(e) of the Class Proceedings Act). Such relevance, coupled with the court's inherent discretion to control discovery and under s. 12 of the Class Proceedings Act, provides the court with all it needs to ensure both relevance and fairness when determining whether the requested production should be ordered.

In this particular case, the defendants' motion was dismissed as too broad and not justified, but without prejudice to their right to pursue the records again on cross-examination and, if they are refused, to bring a refusals motion.

Significantly, however, Justice Belobaba did order production of additional medical documents focused solely on identifying or describing the products that were implanted in the plaintiff. He found such documents to be relevant and necessary for the section 5(1)(e) analysis of the adequacy of the representative plaintiff.

Justice Belobaba distinguished this case from the finding in Roveredo v Bard Canada Inc, in which Strathy J. found that the production of additional medical records was relevant to the preferable procedure analysis because they would assist the court in determining whether a class action was preferable to individual actions.

Thus, it will be crucial going forward for defendants requesting medical records pre-certification to identify how the records will assist the court in making a determination on each of the section 5(1) criteria during the certification motion. If the defendants cannot do so, they are unlikely to receive production.

In the context of multiple model product liability class actions, it may be helpful for defendants to identify how the particular medical circumstances of the proposed representative plaintiff may (or may not) be capable of extrapolation across the class. In such cases, medical records would be required for an appropriate analysis. Whether a finding of commonality can be made across the class goes not only to the common issues analysis, but also to whether a class action is the preferable procedure, and is part of the assessment in proposed product liability class actions.

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