Personal Injury lawyers should know that the Court of Appeal has allowed the Information and Privacy Commissioner of British Columbia to challenge an order that allows the tobacco company Philip Morris International Inc. access to a number of government databases containing personal healthcare information.
The central issue on appeal will be whether the chambers judge erred in not extending the “not compellable” privacy protection offered to individual hard copy health care records to documents in the Medical Services Plan Database (the “MSP”), Pharmacare database, Vital Statistics Death databases, and others (British Columbia v. Philip Morris International, Inc.,2016 BCCA 203). Personal Injury cases involving tobacco related causation issues or wrongful death maybe affected by this court order.
The chambers judge ordered production of individual-level data from the government databases referred to, as well as the Ministry of Health decision support systems, with names and other personally identifying information removed (HMTQ v. Imperial Tobacco Canada Limited,2015 BCSC 844).
The Province’s cause of action was created by the Tobacco Damages and Health Care Costs Recovery Act, which also created special rules of evidence that will apply to this case. The Act gives the Province a claim against the manufacturers of tobacco products for the “cost of health care benefits.”
In such an action, as in other personal injury cases, individual health records and documents are compellable, in part, because they are admissible evidence for some purposes. Such documents are treated as business records under s. 42(2) of the Evidence Act, R.S.B.C. 1996, c. 24, which reads:
(2) In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if
(a) the document was made or kept in the usual and ordinary course of business, and
(b) it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time after that.
 That accords with the common law approach to medical records stated by the Supreme Court of Canada in Ares v. Venner,  S.C.R. 608 at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.
The Court of Appeal allowed the intervenor application of the Information and Privacy Commissioner. In order to effectively advance its arguments, it may well be necessary that the Commissioner apply for fresh evidence of a series of codes and guidelines respecting risk mitigation in the “de-identification of personal information”, from both domestic and international sources. The tobacco company does not like this at all and has objected to any fresh evidence.