Canada: Medical Records: Personal Privacy In Conflict With The Rule Of Law

British Columbia's controversial Tobacco Damages and Health Care Costs Recovery Act ("the Act") is back in the courts.1 This time around the dispute isn't on the Acts constitutionality, but instead pits the right to privacy in medical data against a persons or corporation's right to a "fair playing field" in litigation, or the principle of procedural fairness grounded in the Rule of Law.

In 2001, the Province brought an aggregate action to recover health care expenditures for tobacco related diseases against 13 tobacco companies including Philip Morris International ("PMI"). Consequently, PMI demanded access to the raw data in the health care databases that the Province is relying on to prove causation and damages. The Province attempted to refuse production of the data, claiming disclosure would violate privacy law and that s. 2(5)(b) of the Act makes information in the databases non-compellable. S. 2(5)(b) sets out the procedural rules that apply if the government seeks to recover benefits on an aggregate basis and states:

"(5) If the government seeks in an action ... to recover the cost of health care benefits on an aggregate basis, (b) the health care records and documents of particular individual insured persons ... are not compellable except as provided under a rule of law, [or, a ] practice or procedure that requires the production of documents relied on by an expert witness".

Justice Nate Smith of the Supreme Court of British Columbia ruled in HMTQ v Imperial Tobacco Canada Limited, 2015 BCSC 844 that s. 2(5)(b) could not be interpreted to deny access to the information needed to produce statistical evidence for an aggregate claim. Holding that individual-level data must be discoverable, as long as identifiable health-care information of individuals was removed; Justice Smith ordered the government to produce the needed data.

The Appeal
A unanimous three judge panel at the British Columbia Court of Appeal led by Justice Goepel upheld Justice Nate's decision finding that s. 2(5)(b) is intended to protect the privacy of and block discovery of documents of particular individuals, but that the provision is not intended to block the discovery of the cumulative data contained in the databases, data which is essential to proving causation and damages.2

The Arguments
The Province argued that the electronic databases contain the same personal medical information that is contained in the original medical records, and that it is this specific medical information that s. (2)(5)(b) promises to protect. Citing the Act's legislative history, the Province emphasized the Legislature's intention to protect the privacy of personal individual medical information.

The Province further relied on Her Majesty the Queen in Right of the Province of New Brunswick v Rothmans Inc., 2016 NBQB 106, leave to appeal denied [Rothmans]. In Rothmans, Justice Cyr of the New Brunswick Queen's Bench dismissed a similar application by PMI for disclosure of anonymized data related to health care benefits in an action under New Brunswick's comparable version of the Act.3 Interpreting provisions with identical language, Justice Cyr rejected the claim that anonymizing data from the databases would be sufficient to protect privacy.

Conversely, PMI argued that s. 2(5)(b) does not block discovery of the "anonymized data". The proper reading of s. 2(5)(b) only forbids compelling health care records of particular individuals – not the anonymized, administrative, statistical data PMI needs to prepare its defence.4

The British Columbia Court of Appeal found that while the Province tried to blur the distinction between data and individual health care records, the evidence showed that this is a true distinction and there is no real privacy threat. Additionally, the data is highly relevant and necessary to PMI's defence. The Province has been working with the data in preparation for this case since 1998. Procedural fairness requires that PMI be permitted to work with the data too. Ultimately, the Court of Appeal agreed with Justice Nate, the data's production is necessary for a fair trial.

What's next?
The Province appealed the Court of Appeal's decision to the Supreme Court of Canada. On July 20, 2017, the application for leave to appeal was granted. The Supreme Court does not give reasons for why it grants or denies leaves to particular cases but the Supreme Court Act5 requires that the Court concern itself with cases of public importance. Speculation as to why the Court granted leave is generally counterproductive and at this stage, we do not know what parts of the BCCA decision the Supreme Court of Canada will focus on. Hopefully, we will receive a definitive majority opinion on this issue and the balancing of rights of a litigant when allegations of privacy are raised to deny access to information.


1 Tobacco Damages and Health Care Costs Recovery Act, SBC 2000, c 30.
2 2017 BCCA 69 at para 35.
3 See Tobacco Damages Health Care Costs Recovery Act, SNB 2006, c T-7.5.
4 Supra note 2 at para 22.
5 RSC 1985, c S-26.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions