The focus of the hearing was a request by the lawyers representing injured Quebec smokers (QCAP) for modifications to the procedures available to establish the legitimacy of claims by heirs of members of the Quebec class of tobacco industry victims.
Documents circulated before the hearing included:
Mark Meland presented the reasons for the request, described the process that they were requesting and provided examples of supportive decisions by Canadian courts.
He explained that with only six month left before the claims process ended, there was a risk that hospital archivists would not be able to provide the information required to validate the claims of tens of thousands heirs of smokers whose lung cancer, throat cancer or emphysema had been diagnosed in the specific period covered by the class action. He described the risk to claimants if they were unable to receive the information before the deadline. "If they cannot find compensation merely because the system is too cumbersome to obtain the information they need to file the claim, then the process will have failed them."
Currently, hospital archivists must establish the succession status of a person making an information request for a deceased person in addition to seeking out the specific health information in the medical records. With tens of thousands of requests before them, Quebec health authorities perceived the risk that they would not be able to manage this one-time high demand before the claims period ended, and also that doing so could cause delays to processing requests from other Quebecers.
They consulted with the legal team representing the QCAP class to develop a proposal to reduce the administrative burden of Quebec hospitals. The proposal includes a mechanism for health authorities to communicate health information to the agencies managing the preparation and determination of claims (Proactio and Epiq). Doing so would allow hospital archivists to focus on the medical records while leaving the establishment of succession status to the agents and claims administrators.
Representing Santé Quebec, Anne de Ravinel briefly explained the desire of the health authority to have the changes approved. (This was the first time in the 7 years of the Ontario administration of this Quebec class action that anyone has spoken in French!).
She explained that the primary concern for Quebec Santé was the need to respond to requests for records in an appropriately timely way and also to protect the privacy of these records and that the proposal helped the agency meet these responsibilities.
Also speaking in favour of the request was Kate Boyle (on behalf of Pan Canadian class of victims, which have another year to file their claims) and Robert Cunningham (on behalf of the Canadian Cancer Society). No parties raised objections or concerns.
A qualified yes
Both justices seemed favourably disposed to the request, but Mr. Meland was nonetheless probed about alternative solutions available. He explained that extending the deadline for making claims was unfair to claimants, who had already waited decades to receive compensation. Because no one will receive any money until all of the claims are received, an extension would delay everyone's payment.
A sticking point for Justice Morawetz was the proposal to give Santé Quebec blanket immunity for its new role in the claims process. He seemed unmoved by Mr. Meland's explanation that this was the same kind of immunity which was already extended to other participants in the process (claims administrator, mediator, etc.).
At the end of the hearing, and after a brief off-camera judicial consultation, the judges said that orders from both courts would be issued in line with the request, albeit with a minor modification to the immunity provisions.
The rulings
Decisions made on February 20th were circulated after the weekend by both courts. They are:
