Thursday, 10 October 2019

Canada's health surveillance system becomes collateral damage of the CCAA process

Two things happened this week that underscore the vulnerability of our public health infrastructure to the terms of the insolvency protection now granted to Canada's 3 large tobacco companies.

Last week's decision 

A week ago, Justice Thomas McEwen extended for another 5 months the Ontario Court Order that gives all three companies relief from any lawsuits. The 'stay' on litigation will now be renewed or expire on March 12. Injured Quebec smokers who started their suit against the companies in 1998 and whose judgment against the companies was upheld by the Quebec Court of Appeal  21 years later will have had their access to justice delayed for at least one more year.

Justice McEwen has not (as far as I know) released his reasons for this lengthy extension of a litigation stay under the federal Companies' Creditors and Arrangement aCt (CCAA), but he has made clear his view that the companies should have ample time to try to settle all of the claims against them. Quebec smokers have been told to take their place in line with all other claimants -- even those who have never gone to court.

This week's meeting: "If you're not at the table, you're on the menu" 

On Tuesday a closed door, highly secret meeting was held at an undisclosed location. Invited to the meeting were the tobacco companies, two provincial attorneys general, lawyers representing 8 other governments, the Quebec class actions whose victory precipitated the CCAA process and some other would-be class action claims.

This meeting was reported to be the first such endeavor organized by Mr. Warren Winkler, who was recruited by Imperial Tobacco and whose role as mediator towards a 'global settlement' was authorized by the Ontario Court.

The veil of secrecy is so thick that it is hard to say for certain that no health ministries were invited to brief up or participate in the meeting. It will be some time before whether or how they have been engaged will be known.* If health perspectives were brought to the table, however, it is quite clear that they were not given the benefit of signficant public or expert consultation.

The Canadian Cancer Society volunteered to provide such input, but its request was turned down by Justice McEwen.

This week's news:  health research imperilled by data privacy loss 

On Wednesday, the Globe and Mail reported that Statistics Canada is calling back data from the Canadian Community Health Survey that it has shared with the provinces.

Their decision was prompted by a ruling by the Court of Queen's Bench of New Brunswick made public on March 7 this year. The ruling ordered the province to hand over the health records of 1,273 New Brunswick residents who had told Statistics Canada that they were smokers. (When participating in the Canadian Community Health Survey, Canadians are informed that "Statistics Canada and your Provincial Ministry of Health would like your permission to link information collected during this interview.  This includes linking your survey information to your past and continuing use of health services such as visits to hospitals, clinics and doctors’ services.")

This was a ruling that was destined for appeal -- probably right up to the Supreme Court, which only months earlier had made clear that the privacy of individuals should be protected from this kind of disclosure.

But any appeal was pre-empted by the CCAA process. On the very next day after the New Brusnwick ruling, (March 8) JTI-Macdonald asked and received CCAA protection. A week later (March 12), Imperial Tobacco did likewise, followed by Rothmans, Benson and Hedges on March 22.

Seven months later, all litigation related activities remain on ice. New Brunswick can't ask a higher court authority to review this decision or consdier the unintended consequences. Statistics Canada, which carefully asks survey participants to give permission for data linking, can no longer assume that its data security requirements will be honoured by the provinces. And now provinces can no longer have access to the data.

The Globe and Mail's Tavia Grant reports that health researchers and ministries are unhappy with this turn of events, and that the loss of this data will hinder public health research, programs and services.

Yet none of this was mentioned at last week's hearing. None of the lawyers for the provinces suggested that this one aspect of the litigation -- the potential release of personal health records -- be allowed to wend its way towards final decision by a higher court.

In fact, it was the lawyers managing the New Brunswick case who took the strongest stand against allowing any litigation to continue. During the court review, they sided with the tobacco companies and opposed any carve outs for the litigation stay. (It was a jaw dropping moment when they told Justice McEwen "All we are saying is give peace a chance. .... In my submission there comes a time when you have to lay down your sword....Have to put aside the past.")

Perhaps this is to be expected. These lawyers (who also represent 5 other Canadian provinces are working on a "contingency fee" arrangement, by which they get a percentage of any award (18% in the case of New Brunswick), but agree to pay the legal costs. They have no incentive or reason to fight to protect the CCHS or the privacy of thsoe who participate in it.

The health sector will need other champions. The issue of data privacy could maybe be clarified or strengthened by amendments to the Statistics Act.

But what about the other vulnerabilities of public health in this process?`

* It was many months after a previous set of settlements between the same governments and industry were made that we were able to confirm that health ministries had not been engaged. Requests under Access to Information laws returned hundreds of blacked out pages, but a "no records" response with respect to consultations with health ministries.