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.

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