Ontario Court rejects notion that class members
must be “clones.”
Judges on a certification motion do understand that class members are not clones and even if they were clones, judges understand that individual clones may have had different experiences with the defendant. Commonality is not disapproved by finding instances of difference.
The Supreme Court of Canada has described the “commonality requirement” as the central notion of a class action – in order to be certified (i.e. allowed to proceed to a decision on the merits), a class action must raise common issues of fact or law for the class. To be a common issue, the answers to the questions raised by the issue must be capable of extrapolation, in the same manner, to each member of the class. An issue is not common if its resolution is dependent upon individual findings for each class member.
But if commonality is at the core of a class action, do the class members need to be “clones” who had identical experiences with the defendant in order for the case to move forward?
Or can a class with a “significant level of individuality” – like a “bad batch” of clones with unique genetic mutations – still prove successful?
The Ontario Superior Court of Justice recently confirmed that class members do not need to be “clones” for a class action to be certified, in a case coincidentally involving cosmetic enhancements.
In G.C. v. Jugenburg, the Defendants attempted to introduce individual medical records of class members as evidence to refute commonality by proving that each class member was a unique human being who had different interactions with the Defendants. However, the Ontario Superior Court of Justice struck the evidence and ended the possibility of prolonged “clone wars” – i.e. potential unresolved arguments over the need for class members to be perfectly identical – by dispelling the notion that judges would require the class to be “clones” to establish commonality.
Cameras, consent, and cosmetic surgeries: The facts of Jugenburg
The class action at hand involved a plastic surgeon and his medical clinic who allegedly violated the privacy rights of patients.
In 2018, investigative reporting by the CBC revealed that the Toronto Cosmetic Surgery Institute clinic operated by Dr. Martin Jugenburg, whose practice consisted of breast augmentations, buttock lifts, and various other cosmetic procedures, had video surveillance cameras installed throughout the clinic, including in waiting, consultation, examination and operating rooms, which captured nude or semi-nude patients. The College of Physicians and Surgeons of Ontario subsequently held disciplinary proceedings for Dr. Jugenburg finding that he had engaged in professional misconduct in relation to recording patients without their consent.
Three former patients filed a class action against Dr. Jugenburg and the clinic on behalf of patients and prospective patients who were surreptitiously recorded, alleging various claims including intrusion upon seclusion and negligence.
Prior to certification, the Defendants moved for production of the complete medical records of the Plaintiffs and two other class members. All five individuals had sworn affidavits in support of the Plaintiff’s certification motion, in which they had described the circumstances of their attendance at the clinic. Dr. Martin Jugenburg had put forth the medical records in his responding materials, arguing that the individuals made their medical treatment a material issue by discussing the visits.
The medical record evidence was highly sensitive and embarrassing and contained detailed personal health information, including family medical histories, treatment plans, desired aesthetic objectives, notes related to the witnesses’ physical examinations, and surgical notes.
The Plaintiffs moved to have the evidence struck on the basis that the documents were potentially prejudicial or an abuse of process.
Class members are not clones: Individual records are not needed to contest commonality
Justice Perell of the Ontario Superior Court of Justice struck the medical evidence from the record.
The fact that the individuals had testified about their interactions with Dr. Jugenburg concerning their medical treatment did not make their treatment a material issue. The class action was exclusively about protecting patient privacy in the provision of medical services. Although the circumstances of what brought the patients to the clinic was put in evidence as part of the factual narrative of the class action, the interactions between the patients and Dr. Jugenburg were irrelevant to certification, save with respect to matters of each patient’s consent to being surveilled.
The Court stated that commonality is not disapproved by finding instances of difference and that judges understand that class members are not clones and may have had different experiences with the defendant. Individual medical records might be relevant at individual issues trials with respect to individual damage claims. But issues relating to individual class members contained in medical records do not assist at certification, when the merits of an action are not in issue.
Justice Perell found that in the context of a class action, courts will deny requests for production of medical records on a certification motion if the requested evidence does not meet the threshold of relevance to the certification, and he noted that requests for the production of medical records in class actions involving medical devices or drugs have typically been dismissed. Only in exceptional circumstances, will the production of medical records be ordered before certification.
Surreptitious surveillance leads to cert: Jugenburg is allowed to proceed
After addressing the preliminary motion, the Court ultimately certified the class action.
Justice Perell found that the circumstances of the class members were idiosyncratic in some respects and those idiosyncrasies precluded some proposed common issues from being certified. However, the Court concluded that a dozen of the common issues regarding the surveillance complaint did not depend upon individual findings of fact to be made. The answer to each question was capable of extrapolation in the same manner to each member of the class.
A claim for intrusion on seclusion required the plaintiffs to establish that the defendant intentionally or recklessly intruded upon the seclusion of the class’s private affairs without lawful justification, and that the invasion would be seen as highly offensive causing distress, humiliation, or anguish to a reasonable person. The fact that physical injury or monetary loss was not a necessary ingredient for liability was a significant conclusion the Court kept in mind because it meant that an aggregate damages award could be available to the class if the claim was successful.
In the immediate case, the common issues related to the intrusion upon seclusion claim could be certified as they would allow the Court to answer the question of whether the Defendants invaded the affairs or concerns of the class without lawful justification by surveilling them without consent and to potentially award aggregate damages.
The common issues related to the duty of care and standard of care for the negligence claim could also be certified. Questions regarding a breach of the standard of care did not raise idiosyncrasies. If there was a breach, it was common to all class members who were surreptitiously surveilled. The other elements of the negligence claim would have to be proven individually. However, the possibility of individual issues trials did not negate or minimize the productivity and access to justice provided to the class by a trial for all the other certified common issues.
Class actions are not clone wars: Cases can involve a significant level of individuality
Jugenburg exemplifies that class actions can be certified even if many individual issues remain to be decided after the resolution of the common issues. To quote Justice Perell, “Even a significant level of individuality does not preclude a finding of commonality.”
Class actions are inherently brought on behalf of individuals, and the possibility of individual issues is expressly accounted for within the confines of Canadian class action legislation.
A class does not need to be made up of perfectly identical clones to be certified. A “bad batch” of clones – a group of individuals with some shared traits or experiences but many more unique ones – can still make up a viable class, so long as they share common issues whose resolution will provide efficient access to justice.
If you suffered a wrong related to medical products or services, or an invasion of privacy, please contact our office. Siskinds’ team of class action lawyers has extensive experience and expertise in the areas of pharmaceutical & medical device litigation and privacy breaches.
James Boyd practices with the Siskinds Class Action department. If you have questions about the information contained within this article, please write to james. [email protected]nds.com or call 226.213.7103.
 G.C. v. Jugenburg, 2021 ONSC 3114 (CanLII) at para 24, <https://canlii.ca/t/jfph2>
 G.C. v. Jugenburg, 2021 ONSC 3119 (CanLII), <https://canlii.ca/t/jfvs6>
 Ibid at para 129.