Health Law Update: Constitutional Law News, Procurement Law News, and Privacy Law News

Davis LLP Health Law Bulletin

March 05, 2012

This bulletin outlines numerous recent developments affecting the health sector covering the areas of constitutional law, procurement law and privacy law.

Constitutional Law News

Insite Constitutional Challenge

Canada (Attorney General) v. PHS Community Services Society et al, 2011 SCC 44, [2011], 3 S.C.R. 134:

On September 30, 2011, the Supreme Court of Canada unanimously held that the federal government’s failure to provide the exemption required for Vancouver’s supervised safe injection site (known as “Insite”) to operate constituted a breach of the Canadian Charter of Rights and Freedoms. Insite requires an exemption from the Controlled Drugs and Substances Act (“CDSA”) in order to permit clients to bring controlled drugs into its premises for supervised injection. The petitioners asserted that the CDSA improperly interfered with the province’s core constitutional competence over health services and, alternatively, if the CDSA provisions were valid as a matter of division of powers, that their application to Insite was inconsistent with section 7 of the Charter as their application would prevent addicted persons from obtaining potentially life-saving health services.

While the SCC recognized the delivery of health services as a matter within exclusive provincial competence, it held that the evidence did not establish that the provision of supervised injection services fell with the “core” of that competence and dismissed the argument based on interjurisdictional immunity. The Court also found the substantive offences created by the CDSA were themselves constitutional, on the basis that the CDSA also included a provision enabling exemptions, thus providing a means to avoid the application of substantive offences where the result would be arbitrary, overbroad or grossly disproportionate. However, in denying Insite an exemption, the Minister had breached section 7 by his exercise of the statutory discretion. The denial was arbitrary, as the information available not only demonstrated that Insite’s operation did not undermine the health and public safety objectives of the CDSA, it demonstrated that Insite actually furthered those objectives. The denial was also grossly disproportionate, as the evidence established that Insite saves lives while having no discernible negative impact on the CDSA’s objectives. The SCC directed the Minister to provide Insite with an exemption forthwith. When exercising his discretion regarding exemptions in the future, the Minister must strike an appropriate balance between public safety and public health goals.

Sheila Tucker, of Davis LLP’s Vancouver litigation department, was counsel for Vancouver Coastal Health, intervenor, in this matter.

Right to Life

Carter et al. v. Canada (Attorney General), British Columbia Supreme Court, Vancouver Registry No. S112688 (judgment on reserve):

This case involves a challenge under sections 7 and 15 of the Canadian Charter of Rights and Freedoms to the provisions of the Criminal Code that create an absolute prohibition against physician-assisted dying. It is asserted that it is unconstitutional for the criminal law to prevent grievously and irremediably ill persons experiencing intolerable suffering from seeking a physician’s assistance to die. The plaintiffs argue that the impugned provisions have a disproportionate and discriminatory impact on physically disabled persons who are, as result of their disability, unable to commit the lawful act of suicide without assistance. They further argue that the impugned provisions unjustly deprive grievously and irremediably ill persons of their rights to life, liberty and security of the person by depriving them of the right to make and take action on personal decisions of fundamental importance and to make fundamental decisions regarding their own lives and medical care.

The case asks the courts to revisit the decision of the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, in light of significant intervening developments in Charter law and significant new factual evidence. The new factual evidence includes detailed expert evidence regarding regimes in the following jurisdictions where physician-assisted dying has since been legalized: Oregon, Washington, Colorado and Georgia in the United States, the Netherlands, Belgium, and Luxembourg in Europe, and Colombia in South America. The judgment of Madam Justice Lynn Smith has been on reserve since December 16, 2011.

Sheila Tucker, of Davis LLP’s Vancouver litigation department, was co-counsel for the plaintiffs in this matter.

Historic First Nations Health Agreement

On October 13, 2011 the First Nations Health Council and First Nations Health Society (now the Interim First Nations Health Authority) signed a landmark legal agreement with the federal and provincial governments that will ensure B.C. First Nations have a major role in the planning and management of health services for First Nations through a new First Nations health governance structure. The British Columbia Tripartite Framework Agreement on First Nation Health Governance paves the way for the federal government to transfer the planning, design, management and delivery of First Nations health programs to a new First Nations Health Authority over the next two years. The First Nations Health Authority will incorporate First Nations’ cultural knowledge, beliefs, values and models of healing into the design and delivery of health programs that better meet the needs of First Nations communities.

The Davis LLP team members involved in this matter are: Elizabeth Mayer, Sheila Tucker and Linda Parsons Q.C..

Procurement Law News

Disgruntled proponents get creative…

The 2011 BC case of Metercor Inc. v. Kamloops shows a new way for a disgruntled bidder to challenge a procurement decision that has gone against them. In this case, the City of Kamloops issued a request for proposals for the installation of water meters. The unsuccessful proponent (CMI) brought an action for judicial review of the City's decision to enter into negotiations with the successful proponent (Neptune).

The RFP set out a two stage evaluation process. Proposals were first scored for their technical merits and only those proposals that scored at least 75% on this basis (56.25 marks) went on to be assessed on the basis of price. Neptune was the only proponent who scored over 75% and was therefore the only proponent whose price was considered and became the preferred proponent by default. The fact that proposals would be evaluated on this basis was set out in the RFP and the court held that the City fully complied with the RFP in this respect and had treated all bidders fairly and equally in the evaluation. However, the court held that the decision to use this form of two stage evaluation process was in itself unreasonable.

The City's procurement policy stated that "price and quality are major considerations". The court concluded that imposing a cut off below which price was not considered resulted in eliminating price entirely from the decision making process. They gave an example of a proponent who scored 55 marks for quality, but who gained 25 marks on price, as against a proponent who scored 57 marks on quality, but 10 marks on price. In the court's view, eliminating the proponent with a total score of 80 marks in favour of a proponent with a total score of 67 marks was unreasonable. It was therefore unreasonable for the City to create a procurement process that had the potential to give rise to this result. The court remitted the matter back to the evaluation committee, requiring them to consider the prices submitted by all proponents. Interestingly, it is unlikely that CMI would be any better off with this result – their technical score was 38.53, against 67.68 for Neptune and 47.18 for the third proponent. Even if CMI scored 25 points on price and Neptune zero points, Neptune would still score higher than CMI.

This decision raises a new challenge for procuring bodies (such as hospitals). Previously, the main challenge was to ensure that you complied with the provisions in the RFP, treated all proponents fairly and equally and without bias. Now, it appears that a proponent can submit a proposal and, if it is unsuccessful, can challenge the whole basis of the RFP. Establishing evaluation criteria is often a challenging process – how to weigh quality against price, which aspects of quality should have more or less weight and so on. This case therefore underlines the need to run a 'sense-check' of the evaluation criteria before sending out the RFP. What will happen if bids are submitted on widely differing bases? Do the criteria have the potential to produce an undesirable or unreasonable result? Carrying out this check in advance would assist in rebutting any subsequent challenge from the inevitably disgruntled losing proponents.

Privacy Law News

Amendments to BC FOIPPA – Privacy Impact Assessments

BC FOIPPA was amended this Fall and it is now mandatory for a public body (such as a hospital) to complete a privacy impact assessment, and submit it to the Office of the Information and Privacy Commissioner for review, if the public body intends to engage in a “common or integrated program or activity” (for example, a designated project between a health authority and a private sector organization involving the use of personal information) or a “data-linking initiative” (for example, an initiative involving personal information from separate databases being combined for a new purpose).

Ontario Court of Appeal recognizes the tort of “intrusion upon seclusion”

In British Columbia, Manitoba, Saskatchewan and Newfoundland, there is legislation providing a general statutory cause of action (civil claim) for a breach of privacy in certain circumstances. However, the statutory right to bring a civil claim for a breach of privacy does not exist in all provinces. Earlier in January 2012, the Ontario Court of Appeal issued a unanimous decision in Jones v. Tsige, 2012 ONCA 32, which recognized, at common law, the tort of “intrusion upon seclusion” (a particular type of privacy breach) and awarded $10,000 in damages to Ms. Jones. The “intrusion” arose in Jones v. Tsige because Ms. Tsige, a bank employee, “snooped” in Ms. Jones’ banking records. Prior to this case reaching the Court of Appeal, it had been unclear whether the Ontario courts would recognize a tort claim for breach of privacy of this nature.

Jones v. Tsige may lead to courts in other provinces recognizing the common law tort of “intrusion upon seclusion”. A further interesting question arising from this decision is whether the Small Claims Court in British Columbia would have jurisdiction to hear a claim for “intrusion upon seclusion”, notwithstanding that a statutory tort claim for breach of privacy under the BC Privacy Act must be brought in the Supreme Court of British Columbia.

Amendments to PIPEDA – Breach Notification Provisions

Parliament has now resumed sitting and it will be interesting to see what happens to federal Bill C-12 which proposes to amend the federal Personal Information Protection and Electronic Documents Act. The most significant part of Bill C-12 is the breach notification provisions which require organizations to notify the federal Privacy Commissioner of any “material breach” of security safeguards involving personal information under its control. Somewhat similar wording in Alberta’s Personal Information Protection Act has resulted in numerous reports by organizations to the Alberta Commissioner and numerous decisions of the Alberta Commissioner requiring organizations to notify affected individuals.

BC Order F12-01 – Emergency and Health Services Commission of British Columbia

The B.C. Office of the Information and Privacy Commissioner recently upheld the decision of the Emergency and Health Services Commission to withhold from CUPE certain records which had been sought under BC FOIPPA pertaining to a labour dispute between paramedics and the Commission. The labour dispute had resulted in back-to-work legislation being passed and the OIPC upheld the Commission’s decision to withhold some records (while ordering access to other records), noting, among other things, that a public body is authorized to refuse access to information in circumstances where access to the records would allow an individual to draw accurate inferences about advice or recommendations developed by or for the public body.