In 2000, the Legislature of British Columbia enacted the Tobacco Damages and Health Care Costs Recovery Act (the “Act”), which created a statutory right of action enabling British Columbia to sue tobacco manufacturers to recover the cost of health care benefits related to disease caused or contributed to by exposure to a tobacco product.
The Act contemplates recovery for: (a) the cost of health care benefits for particular individual insured persons; and (b) the cost of health care benefits on an aggregate basis. British Columbia elected to pursue a statutory action on an aggregate basis in an action commenced January 24, 2001. Proceeding by aggregate action meant that the Province would not be required to disclose the “health care records and documents of particular individual insured persons” under the Act. Such records would be compellable in an action for the cost of health care benefits for particular individual insured persons.
In pursuing its aggregate action, the Province indicated that it would rely on a number of health care databases containing health care information of millions of British Columbians, and spanning a number of decades, in order to prove causation and damages. The Province’s position was that the databases constituted “health care records and documents of particular individual insured persons” and were therefore not compellable under the Act. However, it offered the defendants access to the information stored in the databases through an agreement with Statistics Canada, which would have allowed them to view the databases at a Statistics Canada Research Data Centre. One of the defendants, Philip Morris International, Inc. (“Philip Morris”), declined this proposal on the basis that its access to the data would be fettered and require it to waive litigation privilege. It brought an application for the production of the databases.
The Decisions Below
The application judge held that the Act did not protect the databases from disclosure, because the databases were distinct from the individual health care records of an individual, and ordered production of the databases in an anonymized form. The British Columbia Court of Appeal unanimously upheld this determination, finding that the databases were both highly relevant to the litigation and “of a very different character” than individual clinical records, which it acknowledged were non-compellable under the Act.
Appeal to Supreme Court of Canada
Justice Russell Brown, writing for the Supreme Court, identified and corrected three errors in the decisions of the courts below: (1) the lower courts failed to examine the true scope of the protection from disclosure contained in the Act; (2) they allowed the relevance of the databases to supplant the operation of the text of the Act; and (3) they read the phrase “particular individual insured persons” synonymously with “identifiable individual insured persons,” to bring the databases outside of the protection of the Act.
The Court corrected the errors first by confirming that the databases sought by Philip Morris essentially compiled the type of individual records that are not compellable in an aggregate action, and that placing that information in databases for administrative purposes did not change the nature of the underlying information. Second, the Court held that the Legislature could have, but did not, condition the non-compellability of the records by “relevance,” and the Act renders even relevant documents non-compellable. Third, the Court held that the principles of statutory interpretation and the scheme of the Act did not permit reading “particular individual” as “identifiable individual,” which meant the databases, even anonymized, fall within the protection of the Act.
Philip Morris argued, as it had in the courts below, that the trial would be rendered unfair if it did not receive production of the databases. The Supreme Court held that this concern was addressed in its 2005 decision, British Columbia v. Imperial Tobacco Canada Ltd., which upheld the constitutionality of the Act. Justice Brown found that Philip Morris’s argument “effectively seeks to relitigate this Court’s earlier conclusion in relation to the Act.”
The Court also stated, “To be clear, the databases will be compellable once ‘relied on by an expert witness’: s. 2(5)(b). A ‘statistically meaningful sample’ of the databases, once anonymized, may also be compelled on a successful application under ss. 2(5)(d) and 2(5)(e)” of the Tobacco Damages and Health Care Costs Recovery Act.
Her Majesty the Queen in Right of British Columbia was represented by Bennett Jones LLP, Siskinds LLP, Duvall Law Firm, LLC and the Attorney General of British Columbia, with a team including Jeffrey Leon, Preet Bell, Scott Azzopardi, James Virtue, André I. G. Michael, James Duvall and Peter Lawless.
McCarthy Tétrault LLP was counsel to the respondent, with a team including Michael A. Feder, Emily MacKinnon and Robyn Gifford.
The intervener the Attorney General of Ontario was represented by a team including Sunil S. Mathai, Farzin Yousefian and Antonin I. Pribetic.
The intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic was represented by David Fewer of the University of Ottawa.
Written submissions were made for the intervener the Information and Privacy Commissioner for British Columbia by Angela R. Westmacott, QC, of Lovett Westmacott.