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...