Tuesday, 1 November 2016

PMI asks the Supreme Court to "guide" provincial courts towards disclosing medical records

At the beginning of the year, an Ontario case manager exhorted the provincial governments who have launched cost-recovery lawsuits against the tobacco companies to pool efforts and reduce the burden on the system.

With each provincial court being asked virtually the identical questions in virtually identical lawsuits, Master Donald Short hinted at the squeeze that was put on judges to align their views on the complex questions put to them in pre-trial motions.

Consolidating the lawsuits, of course, also means consolidating the risks. An advantage of having ten separate proceedings instead of a single test case is that both sides get to hedge their bets that "judicial comity", as Master Short put it, will not always win the day.

But what should happen when provincial courts make opposing decisions on similar issues?

That is the challenge that was thrown to the Supreme Court earlier this fall by Rothmans, Benson and Hedges and other members of the PMI corporate family.

The specific issue at hand is whether the PMI group can have access to provincial health data useful to estimates the costs of treating diseases caused by tobacco use - the "quantum". Unlike the other defendants, the PMI group were not agreeable to the process put in place by the provinces with Statistics Canada.

PMI defendants have asked courts in B.C., New Brunswick and, by inference, Quebec, to grant them access to database/records that the provinces are reluctant to provide. In May 2015, the B.C. Court (Justice Smith) agreed, and ordered that the province provide anonymized data from provincial health care databases. (2015BCSC844) This summer, the New Brunswick Court (Justice Cyr) took a different view of essentially the same question, finding that the information involved was not discoverable. (2016NBQB106). I believe the Quebec Court has yet to consider the request.

Appeals on appeals

You can't please everybody -- and in both the B.C. and New Brunswick cases, the losing parties asked their respective Courts of Appeal to review the decision they did not like. The B.C. Court of Appeal granted leave, resulting in a hearing which took place last month, and was reported in the Globe and Mail. The decision is still under reserve. By contrast, the New Brunswick Court of Appeal decided to decline the request. 

Which brings us to the PMI group request for the Supreme Court to intervene. The basic pitch in its memorandum of argument is that the Supreme Court's intervention is needed to help make the same rules apply in both jurisdictions ("because lower courts have reached divergent conclusions, this Court's guidance is needed.") The province's response is that the company is a sore loser, and that the decision should stand ("attempts by the Philip Morris Group to relitigate the "fairness" ).

Stay tuned!

Links to Supreme Court of Canada Docket:
Rothmans, Benson & Hedges Inc., Philip Morris International Inc., Philip Morris U.S.A. Inc. and Altria Group Inc. v. Her Majesty the Queen in Right of the province of New Brunswick