Friday, 13 July 2018

Supreme Court imposes consistency on access to data.

Six months after hearing the arguments, the Supreme Court of Canada today weighed in favour of the provincial government of British Columbia,

In a unanimous decision written by Justice Russell Brown, Canada's highest court upset two previous decisions made by courts in British Columbia regarding the interpretation of the legislation underlying that province's lawsuit to recover the costs of treating tobacco caused disease.

As these things go, the 28-page ruling is an easy enough read, but an extra bonus is provided in the form of a plain-language summary provided by the court's communication branch (pasted below).

Today's decision is not surprising, given that the Supreme Court had tacitly ruled on the same question some many months ago, when it turned down a request by Philip Morris International for an appeal of a New Brunswick decision that aligns with today's position.

No surprise, perhaps, but doubtless some relief. These cases are complex enough without having different interpretations of essentially the same laws across several provinces.


"Case in briefÈ prepared by the Supreme Court of Canada's communications office:

BC does not have to give a tobacco company databases of health care information about individual BC residents as part of a lawsuit, the Supreme Court has said.
In 2000, the province of British Columbia passed the Tobacco Damages and Health Care Costs Recovery Act. This let it sue tobacco companies for health-care costs related to tobacco use, and the Supreme Court found it constitutional in 2005. In 2001, BC sued Philip Morris International and other tobacco companies. Philip Morris makes and sells Marlboro cigarettes, among other brands.
BC sued “on an aggregate basis,” meaning on behalf of a group of insured persons, rather than for any individual. To prove that tobacco caused health care problems and how much those problems cost, it said it would rely on several databases. The databases held individual health-care information for BC residents between 1991 and 2011, such as costs of medical care, prescription drug use, and status of health coverage.
Anyone being sued has a right to see the evidence the other party is relying on. This allows a defendant to challenge the evidence, and is part of a fair trial. Philip Morris asked for the databases. However, the Act said that if BC sued on behalf of a population (“on an aggregate basis”), it could not share information about individuals insured by its health plan. As a compromise, BC said that the tobacco companies could look at individual-level information at a Statistics Canada Research Data Centre, under strict controls. While other tobacco companies agreed, Philip Morris did not think this was enough to make the trial fair. It asked the court to order BC to give it the databases directly, with names and other identifying information removed. It also asked for individuals to be linked across databases, to make it easier to analyze the data.
The trial judge ordered BC to share the databases, after removing identifying information. He said that the databases were not the kind of health care records the Act was meant to cover. The Court of Appeal agreed. It said that BC should not be able to rely on evidence while denying Philip Morris access to it. It also said there was no real threat to personal privacy.
Justice Russell Brown, writing for a unanimous Supreme Court, disagreed with the lower courts and ruled for BC. He said the databases did contain information about individuals, so could not be shared. Compiling individual health-care information into databases did not change the kind of information it was. Besides, the Act said even documents relating to individual health care benefits could not be shared. The lower courts did not consider this. Justice Brown said the lower courts were wrong to focus on how relevant the databases were to the lawsuit, rather than on the kind of information the Act said could not be shared. He also pointed out that information about “particular” insured persons did not mean information about “identifiable” insured persons under the Act. That meant that removing identifying information would not solve the problem. Justice Brown said that it was too early in the process to talk about trial fairness, because the Act protected it in other ways. Also, the Supreme Court had already found the Act constitutional, meaning it considered it would not lead to unfair trials. He noted that BC would have to share the databases with Philip Morris if an expert witness relied on them in court. Philip Morris could also ask for a “statistically meaningful sample,” with identifying information removed, under a different part of the Act.
In a similar case in 2016, the New Brunswick Court of Appeal said that New Brunswick did not have to share similar databases with tobacco companies. (The Act passed by New Brunswick is mostly the same as BC’s.) This decision ensures a similar provision is applied the same way in both provinces.

Sunday, 27 May 2018

Three years and counting ...

This weekend, three years have passed since Justice Brian J. Riordan first issued his ruling on the Quebec tobacco class actions that were first filed in the fall of 1998.  

Today is as good a moment as any to pause and take note of what has happened - and what has not happened - since the tobacco companies were found guilty of breaking 4 Quebec laws.

The "time required for appeals" just keeps dragging on

Justice Riordan considered that an estimate of six years for the appeals to two levels of court (the Quebec Court of Appeal and the Supreme Court of Canada)  was "optimistic, but possible." Even more optimism may now be required.

Already half that time has elapsed, and we are yet to have a ruling from the Quebec Court of Appeal.  545 days have passed since that court heard arguments for and against the ruling. That is a long time for 5 people to come to a decision! (Or is it 4 who will be deciding? -- Justice Etienne Parent had only a short stay on the Appeal Bench before he was re-assigned last year to the Superior Court in Shawinigan.)

After that, the Supreme Court will almost certainly be asked by the loser for another kick at the can.

Meanwhile, you could die waiting

Justice Riordan was sensitive to the fact that the time required for appeals would further harm the victims. "In the meantime, Class Members are dying, in many cases as a direct result of the faults of the Companies. In our opinion, this represents serious and irreparable injury in light of the time required for the appeals."

His solution was to require that the companies put forward $1 billion before the appeals were heard, and that this money be made available to those smokers. This suggestion was shot down by the Court of Appeal in short order, although the same Court soon afterwards required that the same amount of money be posted as a security lest the companies be tempted to pull out of Canada without paying any of the court-ordered damages.

By now, many if not most of the injured smokers will most certainly have died. The smokers who were eligible for compensation were those who had:
  • smoked at least 87,600 cigarettes before November 20th, 1998 
  • have developed one of the following diseases: lung cancer, throat cancer (larynx, oropharynx or hypopharynx), emphysema. 
  • received the diagnosis for this disease before March 12th, 2012.
  • lived in Quebec at the time of the diagnosis.
Only a small minority of lung cancer victims are diagnosed at an early stage, and only a minority of those are still alive 5 years later. The probability of any of the industry's  estimated 72,000 eligible lung cancer victims being still alive when the case is finally settled is slim indeed. (If Justice Riordan's ruling is upheld, heirs will be entitled to receive the compensation).

$18 billion and counting

Justice Riordan awarded $100,000 to members of the Blais class who had been diagnosed with lung or throat cancers, and $30,000 to those who had been diagnosed with emphysema. With almost 100,000 people injured, the total amount was almost $7 billion. Interest - calculated at the "legal rate" of around 5% is about $1 million a day, meaning that the amount under discussion has now crept upwards of $18 billion.

And one less full-time judge

Last October's announcements of judicial appointments contained the news that Justice Riordan had elected to become a supernumerary judge. 

Wednesday, 17 January 2018

The Supreme Court and access to B.C.'s healthcare databases.

Almost 14 months have now passed since November 28, 2017, when the Quebec Court of Appeal adjourned its hearing of arguments for and against Justice Riordan's decision in the Blais Létourneau class action trials. More than 400 days and no ruling in sight!

As if to put the torture of waiting into the broader perspective of geologic court time, the Supreme Court of Canada today opened its doors to discuss a pre-trial issue in British Columbia's lawsuit against the tobacco companies. Their case is one-week older than the Blais class action claims - yet by some measures is not yet even to the starting gate after 19 years of legal wrangling!

And yet, for this observer the slow pace of the provincial trials does not make the wait for a ruling from the Quebec Court of Appeal any easier ....

The issue - access to medical databases

The question before the Supreme Court today was whether one of the defendants in the B.C. action - Philip Morris International - should be given access to the several databases in which records of the  medical treatments of British Columbians were recorded.

Two lower courts in B.C. had already ruled in the company's favour:  Justice Smith in May 2015, and three justices of the B.C. Court of Appeal in February last year. Both the courts felt that it would be 'unfair' to deny the company access to these records.

As explained here earlier, the opposite conclusion was reached by a New Brunswick court a year after the first B.C. decision. On this decision, neither the New Brunswick Court of Appeal nor the Supreme Court of Canada elected to wade in.

The laws in New Brunswick and British Columbia (and the other 8 provinces) are virtually identical -- as are the defendants and the claims. So having one province say "yes" and the other "no" puts the whole system in an awkward position, to say the least. No wonder if the top court felt it had no option but to revisit the question and make a decision that would apply across the country.

The setting - an imbalanced court

Unlike most courts in Canada, proceedings of the Supreme Court are televised and web-cast. This morning's hearing will soon be available to view on the court's web-site.

The camera at the court captures only some of the action. It will show that the government's side of the room was full, but not that it was very full indeed. It will show that the industry's side was empty, but not that it was very empty indeed.

On the apellant's side (left hand facing the bench) were nine gowned lawyers in front of the bar: five representing the B.C. government, 3 for the Ontario government which was intervening, 1 for an intervenor from the University of Ottawa. Behind the bar were two-dozen onlookers, including students, family members and tobacco control folk.

There might have been more!  The Information and Privacy Commissioner for British Columbia filed a brief in support of the government's position, but did not appear. Perhaps they had no money left after having been dinged for costs as a result of similarly intervening at the B.C. Court of Appeal.

By contrast, there was no "wall of flesh" on the industry's benches. Only 3 lawyers for PMI sat in front of the bar, and only five of their colleagues in a public gallery that was otherwise empty. Unusually, I think, there were no observers from their fellow defendants' teams or other signs of solidarity. PMI is the only defendant to push this issue, as the others have agreed to a system of gaining access through Statistics Canada.

The arguments

There is a good chance that the small number of people involved or interested in the particulars of this case are already in the know, and should be writing this blog.  For the rest of us, explanation comes not only in the form of the three detailed rulings, in the Factums of the Parties that are available on the court's web-site and the arguments presented today.

The section of the Tobacco Damages and Health Care Costs Recovery Act  that was under discussion relates to the government's right to refuse access to certain medical records:
(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,
Jim Virtue (Siskinds LLP) and Jeffrey Leon (Bennett Jones LLP) were given an hour to explain why this section meant that the dozen or so government databases of medical treatment records (nursing home database, discharge abstract database, medicare decision support system, etc) were included in those records that were not to be compelled.

For the first half hour, the presentation focused on the text of the law and how it should be read as a way to protect the privacy of the individuals whose health treatments were detailed in these data banks. Anonymizing the records was decried as no solution and was rejected. "If you take my name off my hospital chart, it still refers to me."

The second half of their presentation focused on trial fairness, with Mr. Leon explaining that the law struck a balance between privacy and fairness, and that the specific provisions allowing for "statistically meaningful samples" gave the industry the data they needed to answer the claims, and that the trial judge would continue to have the discretion to value (or not) the evidence.

Michael Federer (of McCarthy Tétreault) spiritedly expressed the opposite, drawing a more excited response from the judges. He stressed what he saw as the unfairness of the government having decades to use these databases to build their arguments about the number of diseases caused by smoking and the costs of treating them, while only offering a "thimble-full of data" to the defendants. The solution - the only solution that would be fair - would be to have access to the full set of records.

He raised the lack of confidentiality that would face his experts if they used the Statistics Canada portal - with visits subject to access to information requests, and government records of data usage. He contrasted the government's desire to protect the privacy of British Columbians from tobacco industry lawyers and experts, while being willing to break that privacy by offering the data to the government's (Ontario-based) lawyers and experts.

The interjections

The fun, as always, was watching the judges disrupt the lawyers' well-rehearsed comments with questions and comments. Mr. Federer was frequently interrupted: his aplomb seemed to fare better to these than did his arguments. Justices Abella, Moldaver, Karakatsanis, Brown, Rowe and Martin all expressed some difficulties in accepting Mr. Federer's line of argument. My notes, hurriedly written, did not capture thrust and parry of the many challenges put to Mr. Federer and his quick replies. But I would say that Mr. Federer left the room entitled to feel that he had earned his keep for the day,

My favourite moment, however, is clearly remembered. Justice Moldaver seemed to have little patience with the whole shebang. The question about trial fairness was premature, he said, as it was impossible to determine that the sample system would affect trial fairness until it had happened. There was a good chance that they would or could raise the fairness issue at another time, if they only had access to samples of the complete data set.  He had other doubts too -- wondering if there would even be a trial! ("We don't even know if we will get an action based on this really. This is pie in the sky!")

The next steps

How long will it take these 7 judges to decide?  Even a quick judgment will be 3 years or so since the initial ruling (May 20, 2015).  British Columbians hoping for a day in court against this industry will just have to wait a little longer...