A major tobacco company’s bid for production of a collection of British Columbia health-care databases containing coded health-care information has ended today, with the Supreme Court of Canada allowing the appeal of the province in dismissing Philip Morris International’s application. However, the tobacco giant and other defendants are still entitled to production of the databases if any of B.C.’s expert witnesses should rely on them.
In 2001, British Columbia brought an action against Philip Morris International and other tobacco manufacturers to recover the cost of health-care benefits related to disease caused or contributed to by exposure to a tobacco product, pursuant to the Tobacco Damages and Health Care Costs Recovery Act.
Where a province sues to recover the cost of health-care benefits on an aggregate basis, meaning for a population of insured persons, s. 2(5)(b) of the act governs the compellability of health-care documents and provides that “the health care records and documents of particular individual insured persons or the documents relating to the provision of health care benefits for particular individual insured persons are not compellable.”
Philip Morris International applied for production of a collection of health-care databases containing coded health-care information that the province intended to use to prove causation and damages in its action, on the basis that access to those databases was critical to its ability to defend itself and that production was not barred by s. 2(5)(b).
The application judge agreed, finding that the databases were compellable since, once the information contained in the databases was anonymized, s. 2(5)(b) did not apply. The Court of Appeal dismissed the province’s appeal.
Writing on behalf of the court, Justice Russell Brown said he would “respectfully disagree” with the B.C. courts’ decisions.
“The databases constitute ‘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 are therefore not compellable,” Justice Brown wrote, with justices Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Clément Gascon, Malcolm Rowe and Sheilah Martin concurring.
Neither the databases’ relevance to the pleadings in the province’s action nor their anonymization insulate them from the text of s. 2(5)(b), “read in its entire context and in its grammatical and ordinary sense, in harmony with the Act’s scheme and object,” he noted.
“Additionally, and as I have also explained, s. 2(5)(d) permits a court, on application, to order discovery of a ‘statistically meaningful sample’ of any of the records and documents that are otherwise protected by s. 2(5)(b),” Brown wrote. “No defendant has yet made such an application and thus no court has yet had reason to consider what would constitute a ‘statistically meaningful sample’ of the protected documents.”
Michael Feder, a partner in McCarthy Tétrault LLP’s litigation group in Vancouver, represented Philip Morris International in the appeal. In a statement provided to Legal Feeds, Feder noted that “the B.C. trial and appellate courts found that the Province’s disclosure of anonymized, aggregated data as part of the discovery process is essential for a fair trial.”
However, Feder said, in today’s decision, “the Supreme Court acknowledged that my client and the other defendants are still entitled to production of the databases if any of B.C.’s expert witnesses rely on them, and to apply for production of a statistically meaningful sample of the databases and other documents.”
British Columbia made application for leave to appeal the B.C.’s appellate court’s decision to the Supreme Court of Canada in 2011. Counsel for the Crown were not available for comment.
However, Rob Cunningham, in-house counsel for the Canadian Cancer Society in Ottawa, told Legal Feeds in written comments that all 10 provinces currently have health-care cost recovery lawsuits against the tobacco industry, collectively seeking more than $120 billion in damages, and that today’s judgment resolves the health records issue not only for B.C. but for all the other provinces as well.
In 2015, the Quebec Superior Court awarded $15.5 billion in damages in class action lawsuits against the tobacco industry on behalf of individual victims. (An appeal before the Quebec Court of Appeal has been argued and a judgment is pending.) In the United States, health-care cost recovery lawsuits by state governments have resulted in settlements that included payments of US $245.5 billion payable over 25 years, Cunningham adds. In New Brunswick, a trial has been set to begin in November, 2019
“It is essential now that [all] provinces aggressively move their lawsuits to trial,” Cunningham says. “The process is taking far too long.”
Editor's Note: Story updated on July 17 at 7:34 a.m. to reflect comments from Rob Cunningham, Canadian Cancer Society.