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Judge to N.B.: Give records to big tobacco

The Daily Gleaner with Hilary Young 21 March 2019

The province has been ordered to give Canada’s big tobacco companies the medical records of 1,273 New Brunswickers.

In 2008, the government launched a lawsuit against the tobacco companies and their parent companies, seeking up to $60 billion in compensation for increased health costs caused by smokers.

In early February, Imperial Tobacco and Benson&Hedges (RBH), Phillip Morris International’s affiliate in Canada, requested the files – with names removed – be handed over, saying it would help their defence.

The province objected, arguing that releasing the records would breach people’s privacy.

But on March 7, Court of Queen’s Bench Judge Richard Petrie ordered the health records be handed over.

All of Canada’s provinces have filed similar lawsuits. In total, they’re claiming the tobacco companies owe them more than $120 billion. The provinces argue tobacco companies knew or should have known how much their products would cost the governments in extra health-care costs.

The 1,273 figure is considered “a statistically meaningful sample” of smokers or former smokers, court was told during proceedings in January.

The ruling also instructed the province make available an administrative database – again, with names removed – and survey data to the tobacco companies, as well as the release of all documents relied on by the province’s expert in the suit, Dr. Glenn Harrison.

“The parties are directed to consult in order to achieve a consent order on each of the subject production items during the next 30 days,” Petrie said in his decision. Petrie said he didn’t buy the province’s argument that producing the sample information of 1,273 patients would take significant time to locate and de-identify or redact.

“It may delay the scheduled trial dates,” Petrie said. “While the province suggests they will require as much as 12 to 18 months to locate and prepare the records, I am not convinced this is necessarily the case. There is very little evidence on this point.”

Any delay would be due to the resources the province intends to devote to the process, he said.

“In any event, given the enormously high stakes to this lawsuit, can it be said that such delay is to be avoided at all costs?” Petrie said. “I do not find that any significant prejudice will result to the province from any corresponding delay as a result of this production obligation.”

Hilary Young, an associate professor with the Faculty of Law at the University of New Brunswick, said the court recognized that there were privacy issues at stake but also recognized the importance of trial fairness.

“The court considered that the privacy risks could be eliminated or reduced through the terms of the order,” Young said in an email. “There were difficult issues to balance here, but the court’s decision seems fair and well-considered. That said, there is no doubt this will cause more work and expense for the province and will likely delay the trial, which was supposed to start this November.”

The province of New Brunswick has also been ordered to pay $10,000 in related costs.