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.
Background
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
Conclusion
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.
Footnotes
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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