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B.C. government argues against giving health information to tobacco industry

Lawyers for the province told the Court of Appeal Thursday that the B.C. government is being ordered to turn over information about every medical event experienced by every B.C. resident over the past quarter century to Phillip Morris International.

Ben Nelms/The Globe and Mail

A long-running legal battle between the B.C. government and the tobacco industry has returned to court, with lawyers for the province arguing it should not be forced to turn over private health information.

But lawyers for Philip Morris International say a judge has already ruled it should receive the anonymized data and withholding it would deny a fair trial.

The B.C. government first launched legal action against several tobacco companies and sought to recover health-care costs in 1998.

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The matter has been delayed by a number of constitutional and jurisdictional challenges, as well as appeals. A trial date has not been set.

A B.C. Supreme Court judge last year ruled in favour of a Philip Morris application and ordered the province to provide information from a number of government databases.

But lawyers for the province told the Court of Appeal Thursday that the government is being ordered to turn over information about every medical event experienced by every B.C. resident over the past quarter century.

"We are duty bound to protect the citizens of British Columbia. It's our job to make sure that the statute is interpreted properly and that the privacy purpose is upheld," Jim Virtue, one of the lawyers representing the province, told the three-judge appeal court panel.

Mr. Virtue said the information that has been ordered turned over cannot be compelled under B.C.'s Tobacco Damages and Health Care Costs Recovery Act.

The province's submission said the B.C. Supreme Court judge made an error in law by applying the privacy protection under the act only to original hard-copy health-care records and documents, and not electronic databases.

André Michael, Mr. Virtue's co-counsel, told the court that, even if an individual's name was removed from the information provided, Philip Morris would still know a great deal about them.

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But Michael Feder, one of the lawyers representing Philip Morris, said the lower-court judge found aggregated administrative data are very different from health-care records of individual patients.

"It summarizes or abstracts some of the information contained in the health-care records, but it's not nearly as detailed," he said. "It's certainly not electronic versions of health-care records."

Mr. Feder said B.C. Supreme Court Justice Nathan Smith found that producing the data in an anonymized form would pose no threat to privacy.

"He found yes, the data will give you a fairly detailed picture of an individual's medical history. But there is no way to link or trace or relate that history to any identifiable individual," he said.

Mr. Feder said names are not the only things that would be removed from the information provided. He said there would also not be any personal health numbers.

"[Philip Morris International] doesn't want personal identifiers in this data. They're not useful," he said.

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Mr. Feder said B.C. is seeking to recover billions of dollars in damages from Philip Morris and the other defendants.

He said its appeal should be dismissed, with costs.

The Court of Appeal panel reserved its decision and did not indicate when it might be issued.

A B.C. Ministry of Health spokesperson in a statement said the province remains committed to the file, despite the length of time it's taken.

"We will do everything we can to ensure a successful outcome for British Columbians in this case," the statement read.

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