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CIVIL PROCEDURE - Discovery - Electronic discovery and production - Privacy issues - Freedom of information and privacy legislation

Monday, April 03, 2017 @ 11:48 AM  


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Appeal by the Province from an order compelling it to produce information in its databases about health care expenditures for tobacco-related diseases to tobacco manufacturers. The Tobacco Damages and Health Care Costs Recovery Act (Act) permitted the Province to pursue an action against manufacturers of tobacco products for the recovery of health care expenditures incurred in treating individuals exposed to their products. The Act permitted the use of statistical and study-based information to establish causation and to quantify damages of the cost of health benefits. The Province maintained databases with different types of health information, which needed to be linked or cross-referenced in order to identify the tobacco-related costs. The databases were compilations of particular individual health records with data values organized in rows and columns. The Province indicated it intended to use the data to prove its case to recover health care costs, but it refused to produce the data to the manufacturers. It proposed to give the manufacturers severely restricted access through a series of intermediaries, including Statistics Canada. One manufacturer, Philip Morris International (PMI), took the position that the arrangement would be inadequate and unfair as a substitute for discovery. A judge agreed that non-disclosure of the databases could lead to an unjust result. He found that deleting names and other personal information from the databases would address any privacy concerns while permitting PMI to answer the Province’s case, as would be appropriate if the Province made a claim for recovery of the health care costs of any individual impacted by the use of tobacco products.

HELD: Appeal dismissed. The Act was passed for the single purpose of providing the Province with a direct and distinct action against tobacco manufacturers to recover costs of health care benefits. The Province proceeded on an aggregate basis under the Act to recover health care costs. The health records and documents of particular individuals were not generally compellable in such circumstances. In an aggregate action, statistical, population-based evidence became the means by which the Province established causation and damages. The fact that the databases consolidated information from individual health records did not render the data not compellable. The databases were of a very different character from individual health care records and documents. Once stripped of personal identifiers, disclosure of the data posed no threat to personal privacy.

British Columbia v. Philip Morris International Inc., [2017] B.C.J. No. 257, British Columbia Court of Appeal, M.V. Newbury, P.M. Willcock and R. Goepel JJ.A., February 14, 2017. Digest No. TLD-Apr32017002