In Logan v. Hong, the British Columbia
Court of Appeal considered whether third party doctors across
Canada were required to provide plaintiff's counsel with the
names and contact information of patients the doctors had injected
with defendants' product. Class counsel argued this was
necessary to ensure potential members of the class were notified so
that they could exercise their rights to opt-in or opt-out of the
class. The British Columbia Court of Appeal disagreed and
held that the order compelling the production of the information
was an unwarranted invasion of the physician patient
The Court's Decision
The Court of Appeal found that as laudable as the
plaintiff's intention might be to seek redress for class
members, it did not justify an invasion of the privacy inherent in
the physician-patient relationship. A patient's privacy
rights trumped the right to access in the class proceeding, with
the Court finding that "[e]ach patient is entitled to
maintenance of the confidentiality implicit in his or her
attendance in a physician's examining room and protection of
his or her privacy on a personal matter, absent serious concerns
relating to health or safety, or express legislative provisions
compelling release of the information in the public
The order that was being appealed from required the disclosure
of the fact of a particular medical treatment, in addition to the
address and contact information, which the Court agreed might be
something that an individual patient would not wish to broadcast.
While the treatment in question was only cosmetic, the
applicable principle relevant to the analysis protected patients in
any situation, just as it would were the treatment for other more
personal medical conditions.
The Court accepted that there is a "special place of
confidentiality" in the physician-patient relationship,
which is long standing, accepted in the relevant case law and
reflected in the Code of Ethics of the Canadian Medical Association
under the heading Fundamental Responsibilities. In concluding
that privacy trumped access, the Court stated that "giving
full weight to the principle of privacy and confidentiality
inherent in the physician-patient relationship, the limited
circumstances that call for breaching the patients' privacy are
not present here."
The Court's decision confirms the importance of the
confidential physician-patient relationship, and clearly signals
that absent serious concerns relating to health or safety, or an
express legislative provision, the confidential nature of the
relationship will not be interfered with.
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On April 14, 2016, the Supreme Court of Canada (SCC) dismissed Apotex Inc. and Apotex Fermentation Inc.'s application for leave to appeal a FCA decision upholding a damage award for infringement of a patent relating to lovastatin.