|Date Closed:||July 13, 2018|
|Client Name:||Her Majesty the Queen in Right of British Columbia|
Aggregate Actions under the British Columbia Tobacco Damages and Health Care Costs Recovery Act
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, with the consequent privacy protections. 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. Instead, 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, holding that the Act intended to establish the “playing field” for tobacco litigation, and it could not have been the Legislature’s intent to favour the Province unfairly. The Court of Appeal also held 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). However, the Court of Appeal of New Brunswick had considered the same provision in its analogous legislation, and arrived at the contrary conclusion.
The Supreme Court of Canada Allowed the Province’s Appeal
The Province was granted leave to appeal to the Supreme Court of Canada, which unanimously allowed its appeal. Justice, Brown, writing for the Court, identified and corrected three errors in the decisions of the courts below: (1) they 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 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, like it had in the courts below, that the trial would be rendered unfair if it did not receive production of the databases. The Court dealt with this argument by holding 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 held that Philip Morris’ argument “effectively seeks to relitigate this Court’s earlier conclusion in relation to the Act”.
Her Majesty the Queen in Right of British Columbia was represented by Bennett Jones, Siskinds, Duvall Law 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.