APPEAL ALLOWED

British Columbia v. Philip Morris International, Inc., 2018 SCC 36 – Civil procedure – Production of documents – Health care databases

On appeal from a judgment of the British Columbia Court of Appeal (2017 BCCA 69) affirming a decision of Smith J. (2015 BCSC 844).

The province of British Columbia brought an action against P and other tobacco manufacturers to recover the cost of health care benefits related to disease caused or contributed to by exposure to a tobacco product, pursuant to the Tobacco Damages and Health Care Costs Recovery Act. Where, as here, the province sues to recover the cost of health care benefits on an aggregate basis, that is, for a population of insured persons, s. 2(5)(b) of the Act governs the compellability of health care documents and provides that “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”. P applied for production of a collection of health care databases containing coded health care information which the province intended to use to prove causation and damages in its action, on the basis that access to those databases was critical to its ability to defend itself and that production was not barred by s. 2(5)(b). The application judge found that the databases were compellable, since, once the information contained in the databases was anonymized, s. 2(5)(b) did not apply. The Court of Appeal dismissed the province’s appeal.

Held (7-0): The appeal should be allowed. The order of the application judge should be set aside and P’s application for an order requiring production of the health care databases should be dismissed.

The databases at issue in this case constitute “health care records and documents of particular individual insured persons” or “documents relating to the provision of health care benefits for particular individual insured persons”. As such, by operation of s. 2(5)(b) of the Act, the databases are not compellable. Neither their relevance to the pleadings in the province’s action nor their anonymization insulate them from the text of s. 2(5)(b), read in its entire context and in its grammatical and ordinary sense, in harmony with the Act’s scheme and object.

The databases at issue in this case are both “records” and “documents” within the meaning of the Act. They store the health care information of particular individual insured persons. And, while that information is stored on an aggregate rather than individual basis, each data entry in the databases is derived from particular individuals’ clinical records. The mere alteration of the method by which that health care information is stored — that is, by compiling it from individual clinical records into aggregate databases — does not change the nature of the information itself. Even in an aggregate form, the databases, to the extent that they contain information drawn from individuals’ clinical records, remain “health care records and documents of particular individual insured persons”. Further, even were it the case that the databases are not, in their entirety, “health care records and documents of particular individual insured persons”, s. 2(5)(b) protects a second category of records and documents, that is, “documents relating to the provision of health care benefits”. By using expansive language — relating to — in describing this second category, the Legislature broadened the scope of protection furnished under s. 2(5)(b) to include documents that are not health care records and documents themselves, such as billing records and records of drugs administered to a patient. Much of the information stored in the databases is precisely that.

Section 2(5)(b) of the Act conditions the compellability of the records and documents it describes not upon their relevance, but upon their nature. The relevance of those records and documents to a claim brought on an aggregate basis does not alter that nature. Therefore, irrespective of their relevance, such records and documents that fall within the scope of s. 2(5)(b) are not compellable. The courts below erred by allowing what they saw as the relevance of the aggregate databases to supplant the meaning of, and the legislative intent behind, s. 2(5)(b).

The phrase “particular individual insured persons” in s. 2(5)(b) is not synonymous with “identifiable individual insured persons”. The ordinary meaning of the word “particular” is “distinct” or “specific”. Based on this definition, the databases fall within s. 2(5)(b)’s scope as comprising the “health care records and documents of” and the “documents relating to the provision of health care benefits for” each distinct and specific individual in British Columbia, even if, once anonymized, the information contained within the databases is no longer capable of identifying an individual insured person. In addition, equating “particular” with “identifiable” would be inconsistent with the Act’s scheme and would render other provisions in the Act redundant or nonsensical.

Reasons for judgment: Brown J. (Abella, Moldaver, Karakatsanis, Gascon, Rowe and Martin JJ. concurring)

Neutral Citation: 2018 SCC 36

Docket Number: 37524

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17185/index.do