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Civil Litigation - Civil procedure - Parties - Intervenors - Requirement of interest -

Thursday, July 07, 2016 @ 8:00 PM  

Application by the Information and Privacy Commissioner for leave to intervene and to adduce evidence in an appeal from an order directing the Province to produce certain health care records. The Province commenced an action to recover tobacco-related health care costs. It planned to use raw data from several government databases to produce statistical evidence in support of its claim on causation and damages. The data came from health care records and documents of individual insured persons. The defendant obtained an order for the production of the individual level statistical entries contained in the databases at issue, with names and other personal identifiers removed. The Province appealed the order, arguing that the chambers judge erred in ordering the disclosure of the documents. The Province submitted the documents were not compellable because they were either “health care records and documents of particular insured persons” or “documents relating to the provisions of health care benefits for particular individual insured persons” under s. 2(5)(b) of the Tobacco Damages and Health Care Costs Recovery Act (Act). The Commissioner sought leave to intervene on terms which included the filing of a factum, leave to file an affidavit as evidence, permission to apply for leave to present oral argument and that no costs be awarded against the Commissioner. The Commissioner proposed to argue, among other things, that the judge failed to give effect to the legislative intent underlying s. 2(5)(b) of the Act, which was to protect privacy of individual health data, and failed to interpret that provision in a manner consistent with the legislative framework that governed protection of privacy.

HELD: Application allowed in part. The Commissioner’s interest in the outcome of the appeal, specifically as it concerned the disclosure of patient information, was distinct from the interest of the Province. The Commissioner would bring a different and useful perspective to the issue before the court. That perspective was important because the patients whose records were at issue were not before the court. The question of costs and the application to adduce fresh evidence were left to the division hearing the appeal.