B.C. Appeal Court orders province to give up data in smoking lawsuit

By The Canadian Press
February 14, 2017 - 12:45pm

VANCOUVER — The British Columbia government must hand over information about patients that tobacco giant Phillip Morris International says it needs to fight the province's efforts to recover health-care costs from tobacco-related diseases.

In a unanimous decision released Tuesday, the B.C. Court of Appeal upheld a lower court order that Phillip Morris be given access to the raw data used by the province in 2001 when it filed its lawsuit against 13 tobacco companies.

"Trial fairness requires production of the databases," the ruling says. "To find otherwise would tip the playing field unfairly in the province's favour."

The ruling is the latest in the province's 16-year legal battle against tobacco manufacturers to recover billions of dollars it says it spent treating diseases linked to tobacco products.

The B.C. government had argued the raw data contains health-care information about specific patients and that its release could violate privacy laws.

The court dismissed the government's position, saying the anonymous information posed "no realistic threat to personal privacy" provided any identifying information was removed.

B.C. Health Minister Terry lake said the government would study the ruling before deciding whether to appeal the decision to the Supreme Court of Canada.

"We have always felt that tobacco companies should be held accountable for the damage that's been inflicted on British Columbians," Lake said.

The decision from the B.C. court differs from last year's ruling in the New Brunswick Court of Appeal on a similar application by tobacco companies looking to access health-care information.

Writing for the three-member panel in the current decision, Justice Richard Goepel noted in his ruling that the New Brunswick case was limited to privacy provisions.

Also named in the B.C. lawsuit are 12 other tobacco companies, including Imperial Tobacco Canada, R.J. Reynolds Tobacco and Rothmans International Research Division.

An unnamed spokeswoman for Rothmans, Benson and Hedges, a Canadian affiliate of Philip Morris International, said the company agrees with the court's decision.

"The companies' access to this data is essential for a fair trial," she wrote in an email.

B.C. was the first province to sue big tobacco for health-care recovery costs, following similar initiatives in the United States that led to companies paying hundreds of billions of dollars to state governments. Every Canadian province has since followed suit.

Tobacco critics across Canada accuse tobacco companies of dragging out court proceedings as a delay tactic to prevent cases from reaching trial.

"This just goes again to the fundamental effort by the tobacco industry to use every opportunity they have to contest and delay the merits of the case from being heard and for eventually a ruling to take place," said Flory Doucas, a spokeswoman for the Quebec Coalition for Tobacco Control.

Rob Cunningham, a lawyer and senior policy analyst with the Canadian Cancer Society, encouraged the provincial government to continue to push the case through the court system.

"The tobacco industry has been and can be defeated," Cunningham said. "The British Columbia government simply has to persevere and it will be successful at the end of the day."

The number of Canadians who smoke has dropped dramatically over the past half century.

In 1965, 50 per cent of Canadians smoked, and by 2014, that number had fallen to 18 per cent, Cunningham said. That year in British Columbia, only 14 per cent of the population smoked, the lowest rate in the country.

— Follow @gwomand on Twitter

Geordon Omand, The Canadian Press

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