No Need For A "Plain Jane Plaintiff": Pre-Certification Discovery And Challenging The Representative Plaintiff

Just how "representative" should a representative plaintiff be? That question was at the heart of a pre-certification discovery motion in Daniells v McLellan, a privacy class action. Here, the defendant sought to obtain disclosure of a representative plaintiff's medical records to prove that her claim was so unique as to affect her ability to fairly and adequately represent the interests of the class. The court dismissed the motion, but left open a way in which defendants might challenge representative plaintiffs going forward.

Case in Context: Privacy Class Actions

This as yet uncertified class action is one of several recent privacy-related class actions that sprung up after Hopkins v Kay paved the way. The plaintiffs seek damages for intrusion upon seclusion on behalf of about 5,800 people whose medical information was improperly accessed by Melissa McLellan, a nurse at North Bay Regional Health Centre (the "Hospital"). For her actions, McLellan would become