And B.C. rules the other way ....

Anyone with two parents doubtless learned at an early age that there is some variability in decisions from authority figures, and had the experience of getting different answers to the same question depending on which authority was asked.

Events this week showed that this may be a lifelong experience.

Yesterday, the B.C. Court of Appeal upheld a lower court's decision to give the defendants in that province's cost recovery lawsuit the very thing that the New Brunswick Courts had only recently refused them: access to (annonymized) individual electronic medical records.

I don't think it was intended to go this way when near-identical rules for these lawsuits were set across the provinces many years ago. Both the New Brunswick and British Columbia Tobacco Damages and Health Care Cost Recovery Acts contain identical provisions about whether medical records are or are not "compellable" (can be given to the other side):

2(5)(b) 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 except as provided under a rule of law, practice or procedure that requires the production of documents relied on by an expert witness.

Last June, Justice Cyr of New Brunswick decided that this clause protected medical records from discovery, and that releasing them would risk "exposure of very sensitive information." Neither the New Brunswick Court of Appeal, nor the Supreme Court of Canada was interested in entertaining PMI/Rothmans, Benson and Hedges challenge to this decision. (The other tobacco defendants have accepted a data-access agreement involving Statistics Canada). New Brunswick Courts up the line said "no" to PMI/RBH's request for the data.

A year earlier, Justice Smith of the B.C. trial court had come to a very different conclusion. He ruled that access to data was necessary to generate the kind of statistical proof that the case required, and that the information could be given over in confidence because the security demands on expert witnesses were as sound as those imposed by Statistics Canada in the arrangement preferred by the province.

The Court of Appeal took the New Brunswick court's views into consideration, but was not persuaded by it anymore than it was by lawyers representing the province or the provincial Information and Privacy Commissioner. B.C. courts up the line said "yes" to the request for data.

The B.C. Appeal court acknowledged its colleagues, and explained why they thought they were wrong: "[Justice Cyr]did not attempt to read the provisions of the New Brunswick Act as a harmonious whole."  

As if that were not enough, it raised the stakes further by suggesting that denying access to these medical records (as New Brunswick had done) was effectively denying the companies  a fair trial:  "It cannot have been the intention of the Legislature for the playing field to be tipped unfairly in the Province’s favour."

So where do they all go from here? If B.C. is successful in engaging the Supreme Court in a review - and loses - will that put the New Brunswick case under a shadow?

As it turns out, there is a good chance of a harmonious whole to the appraoch by the provincial plaintiffs. Both actions are lead by the same law firm (Siskinds) and the same lead lawyers (James Virtue and André Michael.