Canada: What Role Does "Fairness" Play In Statutory Interpretation?

For decades, the modern approach to statutory interpretation has required judges to discern legislative intent by examining the words of an Act in their "entire context" and in their "grammatical and ordinary sense". But is there a role for concepts like trial fairness when Courts engage in statutory interpretation?

A 2018 decision of the Supreme Court of Canada, British Columbia v. Philip Morris International Inc., 2018 SCC 36, affirms that when determining the meaning of statutes, Canadian Courts should prioritize the language and purpose the Act. Judicial concern for issues like the relevance of evidence and trial fairness have little to no significance in determining an Act's meaning, unless those concerns are supported by a textual or purposive analysis of the legislation.

Determining Legislative Intent

Philip Morris involved an action by the Province of British Columbia ("British Columbia") against a tobacco manufacturer, Phillip Morris International Inc. (the "Defendant") pursuant to the Tobacco Damages Health Care Costs Recovery Act, S.B.C. 2000, c.30 (the "Act"). 

Under the Act, British Columbia has the right to bring an action against tobacco manufacturers to recover health care costs associated with Canadians' consumption of tobacco on an aggregate basis.

The constitutionality of the Act was previously upheld in a 2005 decision of the Supreme Court of Canada, British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 (the "Constitutional Application"). 

Following the Constitutional Application, the Defendant applied for production of a collection of health care databases which included coded health care information that British Columbia intended to use in the action to prove causation and damages (the "Databases").    

The Databases included information such as data on hospital discharges, data regarding payments made under the Province's medical services plan for professional services, and data on prescriptions for insured persons.

The Defendant argued that it had a right to production of the Databases despite section 2(5)(b) of the Act, which states 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". The Defendant argued that the disclosure of Databases was critical to its defence. 

British Columbia argued that it had no obligation to produce the Databases. It took the position that the Databases amounted to "health care records and documents of particular individuals", or, alternatively, to "documents relating to the provision of health care benefits" under section 2(5)(b).

The issue before the Courts was whether the Databases were producible once they were anonymized. 

The British Columbia Supreme Court and the British Columbia Court of Appeal held that the Databases should be produced.  The Court of Appeal noted that the Databases, which did not constitute individual clinical records of patients, were "highly relevant" to British Columbia's claim, which was proceeding on an aggregate basis against the Defendant.

Applying the standard approach to statutory interpretation, i.e. that section 2(5)(b) of the Act had to be read in its entire context and ordinary and grammatical sense in harmony with the Act's scheme and object, the Supreme Court of Canada reversed the Court of Appeal's decision.  

Amongst the reasons the Supreme Court of Canada gave for why the Databases, even if they were anonymized, were not producible that:

  • The Databases were, at least in part, "collections of health care information taken from individuals' clinical records and stored in an aggregate form".  Accordingly, they were "health care records and documents of particular individual insured persons".  They did not fall outside the protective scope of section 2(5)(b) simply because of their aggregate nature; and
  • In any event, the Databases fell under the second category of information captured by section 2(5)(b), i.e. "documents relating to the provision of health care benefits for particular individual insured persons".   The fact that the information in the Databases was transferred from an individual to an aggregate, anonymized form did not detract from the fundamental quality of the information as that which "relates to" the provision of health care benefits for individual persons.

No Role for Trial Fairness in the Statutory Interpretation Exercise

One of the rulings overturned by the Supreme Court of Canada was the Court of Appeal's finding that because the Databases were "highly relevant" to British Columbia's action, it would be unfair to prohibit their discovery.  In the Court of Appeal's view, section 2(5)(b) was never intended to protect documents that were critical to the litigation.

In rejecting this position, the Supreme Court of Canada noted that there was nothing in the language of section 2(5)(b) that required a consideration of relevance as a factor to be considered:

...s.2(5)(b) conditions the compellability of the records and documents it describes not upon their relevance, but upon their nature—being, whether or not such records and documents are "health care records and documents" or "documents relating to the provision of health care benefits".  And, the relevance of those records and documents to a claim brought on an aggregate basis does not alter that nature.   The Legislature could have easily conditioned the non-compellability of records and documents upon their relevance, but it did not...

The Court further rejected the argument that the trial would be unfair if the Databases were denied to the Defendant.  

First, the Court noted that this argument had been rejected in the previous Constitutional Application.   The Court had already held that Legislatures could enact "unconventional rules of civil procedure and evidence" that shift "certain onuses of proof and limi[t] the compellability of information that [a party] assert[s] is relevant". 

In any event, the Court held that concerns about trial fairness were premature at this stage in the litigation.  There were other mechanisms in the Act through which "trial fairness" could be addressed, such as the fact that any document relied upon by an expert witness would have to be produced.   Until these procedural mechanisms were triggered, it was not at all clear that the enforcement of section 2(5)(b) of the Act would cause unfairness to the Defendant.

Is Fairness a Relevant Consideration to Statutory Interpretation?

On the one hand, the Supreme Court of Canada's decision in Philip Morris could be viewed as narrow in scope. By focusing on the absence of express statutory authority to preserve trial fairness as a reason to enforce the plain language of section 2(5)(b), it is arguable that Philip Morris ignores the overall context of the Act, which presumably would include the goal of maintaining a fair litigation procedure between the parties.  Fairness in this context would include the production of documents to the Defendant.

However, a careful reading of Philip Morris reveals that the Court did not necessarily preclude considerations of evidentiary production and trial fairness from the exercise of statutory interpretation. On the contrary, if, in the Court's view, these concerns were fundamental to the Act's purpose, or if they were not premature as the Court found, they arguably could have played a much larger role when discerning the meaning of section 2(5)(b).   

The lesson of Philip Morris may very well be that abstract concepts such as trial fairness have a role to play in statutory interpretation, but only if they are intimately connected to purpose and scheme of the Act. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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