Her Majesty the Queen in Right of British Columbia v. Philip Morris International, Inc.
(British Columbia) (Civil) (By Leave)
Civil procedure - Interpretation, Discovery, Evidence - Legislation - Interpretation - Civil procedure - Discovery - Evidence - Case management judge ordering production of anonymized individual-level data from provincial health databases - Did the British Columbia Courts err in ordering, notwithstanding the privacy protections of the Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, (the “Act”), production of the databases containing health care information of the residents of British Columbia - Are the health care databases either “health care records and documents of particular individual insured persons” or “documents relating to the provision of health care benefits for particular individual insured persons” and therefore not compellable under the Act - Does an order removing the names or other identifiers from the databases mean that they are no longer either “health care records and documents of particular individual insured persons” or “documents relating to the provision of health care benefits for particular individual insured persons” - Does a court have an overriding discretion, notwithstanding the privacy protections of the Act, to order production of the health care databases on the basis of “trial fairness”.
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The appellant brought an action pursuant to the Act to recover tobacco-related health care costs from tobacco defendants. The legislation, which substitutes the normal rules of evidence and procedure for those specifically mandated by statute, was upheld by the Supreme Court of Canada as constitutional and not unduly interfering with judicial independence or the rule of law: British Columbia v. Imperial Tobacco Canada Ltd.,  2 S.C.R. 473, 2005 SCC 49. The appellant offered to provide access to anonymized health information databases to the tobacco defendants, provided they agreed to the terms of a Statistics Canada Agreement whereby the experts of all signatories would have the same access and would be subject to the same restrictions. While some tobacco defendants entered into the agreement, the respondent brought an application for an order that the appellant produce anonymized individual-level data from provincial health databases. The appellant resists on the basis that the databases contain private health care information about millions of BC residents and that its compellability is barred by s. 2(5)(b) of the Act.
The Supreme Court of British Columbia granted the respondent’s application. Declining to follow a subsequent, contradictory decision in Rothmans et al. v. Her Majesty the Queen in Right of the province of New Brunswick, 2016 NBQB 106 (leave to appeal to NBCA and SCC dismissed July 29, 2016, and January 26, 2017, respectively), the appellate court dismissed the appeal.
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