A Supreme Court judge has ordered B.C. to turn over a huge volume of personal health information on millions of citizens to a tobacco company so it can review for itself the linkages between smoking and health-care costs.

Lawyers for the province had argued that such a move would violate doctor-patient confidentiality and be a “massive, unjustifiable intrusion into the privacy of millions of people.” But Justice Nathan Smith ruled that B.C. must hand over the individual-level data from several huge databases. Personal identifying information must be removed. The data must be produced in a way that allows linkages of the different databases.

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That will allow Philip Morris Inc. access to the raw data that B.C. plans to use at trial to produce statistical evidence on smoking and cancer, and the resulting damage claims. B.C. had offered restricted access to the data, with Statistics Canada controlling access. But the company rejected that approach, arguing it can’t have a fair trial unless it can fully understand and challenge B.C.’s statistical evidence.

It’s the latest development in a case that is now 15 years old, and still years away from going to trial. There are court rules aimed at making court cases “speedy” and “inexpensive,” but the judge noted those words “will never be used in reference to this proceeding.”

The case began 18 years ago, when the NDP government introduced legislation specifically designed to take on the tobacco companies. It stacked the deck in favour of the government, reversing the onus of proof on some issues. It stipulated the government does not have to prove specific individuals got sick from smoking or prove the cause of tobacco-related diseases or prove the cost of treating them.

The Tobacco Damages and Health Care Costs Recovery Act also created special rules of evidence. It stipulated that statistical evidence is admissible as evidence in the case, for the purpose of establishing causation and quantifying damages.

It’s that mass of data going back to 1991 that was at issue in the latest ruling. Philip Morris is not seeking patient names, but it wants its experts to determine whether specific information in one database relates to the same patient’s information in another.

The company’s position, recounted in the judgment, is that errors frequently arise from using standard diagnostic codes. The same code can be applied to a lung cancer case and a test for lung cancer. So aggregate statistics showing prevalence of lung cancer can include many people who were tested but didn’t have it. There can also be multiple entries for a single medical treatment, and simple errors where trauma and drug-overdose treatments are entered as smoking-related.

B.C. had earlier arranged with Statistics Canada to make data available to tobacco companies, under strict controls. Tobacco-company researchers would have to be sworn in as deemed Statistics Canada employees, work with the data only in Statistics Canada offices and be subject to fines or prison terms if they revealed personal information. But Philip Morris argued that arrangement could have made its findings available to the other side in the case on demand.

Justice Smith ruled: “Philip Morris Inc.’s application for production of anonymized individual-level data from provincial databases is allowed.”

A Health Ministry official said the decision will likely be appealed, which will add another few years to the case. It was modelled after a similar suit in the U.S., where a settlement provided hundreds of billions of dollars to state governments.

The government won’t release cost estimates to date, but said the potential payoff makes it worth proceeding. (It’s conceivably much bigger than the LNG plans.)

Justice Smith said it’s probably the largest piece of litigation in the history of B.C.

Three years ago, the government agreed with five other provinces to proceed on a contingency basis with outside lawyers.

One of the data banks to be mined contains the mental-health records of tens of thousands of people. Philip Morris argued that “smoking and mental illness are strongly correlated.” Family doctors often provide primary care for mental illness, so the mental health data will assist in determining if certain treatments are more properly attributable to mental illness or to smoking.