Union of BC Indian Chiefs v. Provincial Health Services Authority and others (No. 4), 2025 BCHRT 214
Date Issued: August 22, 2025
File: CS-001385
Indexed as: Union of BC Indian Chiefs v. Provincial Health Services Authority and others (No. 4), 2025 BCHRT 214
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Union of BC Indian Chiefs
COMPLAINANT
AND:
Provincial Health Services Authority, Vancouver Coastal Health Authority, and British Columbia Transplant Society
RESPONDENTS
REASONS FOR DECISION
APPLICATION FOR DOCUMENT DISCLOSURE
Tribunal Member: Shannon Beckett
Counsel for the Complainant: Jason Gratl
Counsel for the Respondents: Alon Mizrahi
I INTRODUCTION
[1] The Provincial Health Services Authority [PHSA], Vancouver Coastal Health Authority [VCHA], and the BC Transplant Society [together, the Respondents] are responsible for managing and delivering liver transplants in the province. The Union of BC Indian Chiefs [UBCIC] has brought a class complaint against the Respondents on behalf of two classes of Indigenous people defined as:
Indigenous persons who have been adversely impacted by a policy requiring six months of abstinence from alcohol before a liver transplant [Abstinence Class]; and
Indigenous persons with PBC[1] who have been adversely impacted by the use of MELD-Na scores to determine their access to a liver transplant [MELD-Na Class]
[2] In the complaint, UBCIC alleges that the process to determine access to a liver transplant in this province discriminates against the Abstinence Class and MELD-Na Class, based on their race, ancestry, and physical disability, contrary to s. 8 of the Human Rights Code [Code].
[3] This decision considers UBCIC’s application for disclosure of several categories of data in relation to Indigenous and non-Indigenous people with liver-related problems. UBCIC says the Respondents have this data in their exclusive possession or control, and that the data is relevant to whether there is a statistically-linked adverse effect on the Abstinence and MELD-Na Classes in relation to their involvement with the province’s liver transplant system.
[4] For the following reasons, I grant UBCIC’s application in part, and order the Respondents to disclose the subset of the requested data that they confirm is contained in the Patient Records and Outcome Management Information System [PROMIS] database. I find this information is arguably relevant to issues in dispute in this class complaint, and represents a proportional order, given the timing of the request and how resource-intense production of the full data-set would be. I further find that the subset of information contained in the PROMIS database is limited, high-level, and de-identified, and as such, the privacy interests of patients whose data is being produced are sufficiently protected.
II Data request and whether data located on promis
[5] UBCIC seeks production of the following information for the time period between February 11, 2019 and February 10, 2025 [the Time Period]:
A. Documents containing the dates on which all patients who were referred to the BC Liver Transplant Program:
i. Were initially suspected of or evaluated for alcohol-related liver failure;
ii. Were initially referred to endocrinologists or other hepatic specialists;
iii. Were initially evaluated by endocrinologists or other hepatic specialists;
iv. Were initially referred to the Program;
v. Were initially evaluated by or for the Program;
vi. Were determined to have met the inclusion or exclusion criteria for the Program; and
vii. Received a liver transplant, if they were determined to have the inclusion criteria for the program.
B. Documents containing the patients’ liver-related health problems — whether due to alcohol, hepatitis, HIV, cirrhosis, cancer, or other causes — at each of the critical dates referred to in para. A(i)-(vii) above, such as their histories of:
i. Clinical diagnoses of liver disease and the dates those diagnoses were initially made;
ii. Liver functioning, specifically, their scores on the Model for End-Stage Liver Disease (MELD) or Sodium MELD (MELD-Na), classification of their hepatic encephalopathy according to the West Haven criteria, classification according to the King’s College criteria for liver transplantation in acute liver failure, Acute-on-chronic liver failure (ACLF) grade level, CLIF Consortium Acute Decompensation (CLIF-C ADs or CLIF-AD) scores, Child-Pugh scores, Maddrey scores, and Glasgow Alcoholic Hepatitis scores, or the information required to code them;
iii. Problems with alcohol use, specifically, their scores on the High-Risk Alcoholism Relapse (HRAR) or the information required to code it (i.e., recent daily alcohol use in standard drink units, duration of heavy drinking, and number of prior alcohol treatment experiences);
iv. Problems related to the use of other substances, specifically, tobacco, cannabis, prescription medication, and illegal drugs; and
v. Problems with social functioning, specifically, their assessment results based on the Stanford Integrated Psychosocial Assessment for Transplantation (SIPAT) or the information required to complete it.
C. Documents containing the clinical outcomes of patients at the time of data collection, including the date of death for any patients who were deceased by the end of the study period.
D. Province-wide data concerning the diagnosis and date of diagnosis of all liver-related problems and all alcohol and other substance use problems from the full population of Indigenous and non-Indigenous persons in B.C. from 11 February 2019 to 10 February 2025.
[6] UBCIC says that its expert witness, Dr. Stephen Hart, requires the above information in order to complete his opinion about whether there is an adverse effect that is statistically linked to Indigeneity, due to decisions made by health care personnel before and during a patient’s interaction with the liver transplant system. UBCIC asserts the information it is seeking should be readily accessible from the PROMIS database and should not cause the Respondents any undue burden to produce. Although Indigeneity is only referenced within category D, I understand from the totality of the application materials that UBCIC’s request in relation to the other categories includes identification of whether or not a given patient is Indigenous.
[7] The Respondents submit that not all of the data being sought is contained in the PROMIS database. In response to UBCIC’s application, the Respondents introduced affidavit evidence from Eric Lun, the Executive Director of the BC Transplant Society. Mr. Lun deposes that during the Time Period, there were 1,621 people referred to the BC Liver Transplant Program.
[8] With respect to what of the requested information is captured within the PROMIS database, Mr. Lun deposes that the following categories of information are not tracked in the PROMIS database: A(i)-(iii), B(iii)-(v), and D.
[9] Mr. Lun further deposes that the following categories of information are tracked in the PROMIS database: A(iv),(v),(vii), and C. With respect to A(vi), Mr. Lun deposes the following information is available in PROMIS: (a) the date of decision for listing a patient; (b) the date of determining a patient’s ineligibility; or (c) the date of delisting a patient due to death or other reasons of ineligibility. With respect to C, Mr. Lun deposes that the following information is available in PROMIS: patient status (i.e. pre-transplant, ineligible, waitlisted, transplanted, and potentially date of death), and the dates associated with each applicable outcome.
[10] Mr. Lun further deposes that the following information is tracked in part in the PROMIS database: part of B(i), part of B(ii). With respect to B(i), Mr. Lun deposes that the Referred Patients’ dates of diagnosis at the time of referral to the Program is available in PROMIS, but not from before referral. With respect to B(ii), Mr. Lun deposes that:
a. MELD-Na scores and Child Pugh scores at the time of referral to the Program are available in PROMIS,
b. CLIF-AD scores are not directly available in PROMIS, but the score components are available in PROMIS, and
c. West Haven Criteria, King’s College Criteria, ACLF Grade, Maddry Scores, and Glasgow Alcoholic Hepatitis Scores are not tracked or otherwise kept in the PROMIS database.
[11] Finally, Mr. Lun deposes that ethnicity is not usually recorded in PROMIS until a patient is “listed”, which I understand to mean when a person is placed on the transplant list. I understand from Mr. Lun’s evidence that a patient’s ethnicity may or may not be recorded in PROMIS before they are listed, but that if and when a patient is listed, their ethnicity will be recorded in PROMIS at that time.
[12] UBCIC does not dispute Mr. Lun’s description of what is and is not available on the PROMIS database. For the purpose of this decision, I accept Mr. Lun’s evidence about what is and is not available on the PROMIS database.
III Analysis
[13] Parties in the Tribunal’s process are required to disclose all documents in their possession or control that may be relevant to the complaint or response to the complaint: Rules of Practice and Procedure [the Rules], Part 6. Documents are within a party’s “control” when the party has the right to obtain them. This includes records held by third parties to the complaint: CFO v. The Organization (No. 4), 2022 BCHRT 55 at para. 88.
[14] The purpose of disclosure is to “provide a fair opportunity for parties to prepare their case and to make full answer and defence”: Smith v. Provincial Health Services Authority and another, 2014 BCHRT 223 at para. 18.
[15] The Tribunal may order disclosure of documents where the applicant has established that the document is relevant or arguably relevant to a fact in issue in the complaint: Green v. Barry and another, 2017 BCHRT 112 at para. 22. The threshold is a low one, there must be some connection between the documents and a fact in issue: Ringham v. Vancouver Island Health Authority and others, 2023 BCHRT 14 at para. 36. Nevertheless, the Tribunal’s process should not be used as a fishing expedition: Oya v. University of British Columbia and another (No. 3), 2021 BCHRT 31 at para. 15. Disclosure should, like all aspects of the Tribunal’s process, serve the goals of efficiency and fairness in the administration of justice: Employee v. Overwaitea Food Group Ltd (No. 2), 2018 BCHRT 84 at para. 10. Proportionality is an important consideration: Johar and others v. College of Veterinarians of BC and another, 2020 BCHRT 179. The Tribunal may decline to order disclosure of arguably relevant documents which are “unnecessary to a just and timely resolution of the complaint”: Smith v. Provincial Health Services Authority and another (No. 2), 2015 BCHRT 112 at para. 53.
[16] The Respondents object to production of the data. They say the request is a fishing expedition that is outside of the scope of disclosure contemplated by the Tribunal’s Rules. Further, they say the request is moot, would prejudice them, and would amount to an undue breach of confidential patient information.
[17] I will consider UBCIC’s application in two parts. First, I will consider category D above, which is UBCIC’s request for province-wide data concerning the diagnosis and date of diagnosis of all liver-related problems and all alcohol and other substance use problems from the full population of Indigenous and non-Indigenous persons in BC for the Time Period [the Province Wide Data Request]. Then I will consider categories A-C above, in which UBCIC requests information about the patients who were referred to the BC Liver Transplant Program during the Time Period [the Referred Patients Data Request].
A. Province-Wide Data Request
[18] UBCIC has not explained how the requested province-wide data could be identified or collected, and I am satisfied that the Respondents do not have possession or control over this information. Even if the Respondents had control of the information, insofar as they could request it from various other health authorities or physicians’ offices, I would find the request disproportionate in the circumstances.
[19] As I understand the request, UBCIC is seeking two pieces of information – the diagnosis and date of diagnosis – in relation to every person in BC who, within the above-noted Time Period, had a diagnosis of any liver-related problem and/or alcohol or other substance use problem. It is unclear how many people may have had such diagnoses during the Time Period. However, given the Respondents’ evidence that during this period 1,621 people were referred to the BC Liver Transplant Program alone, I expect the number of people implicated in the Province-Wide Data Request would be significantly higher.
[20] Nevertheless, with respect to its application generally, UBCIC submits that the data and information it seeks should be readily accessible from electronic databases through patient referrals to the BC Liver Transplant Program. However, UBCIC does not explain how this is true for the Province-Wide Data Request, which includes people outside of the BC Liver Transplant Program.
[21] Mr. Lun deposes that the Respondents do not have access to, or control over, the requested province-wide data. He explains that the PROMIS system is the core registry for the organ donation and transplant community’s clinical information system. He says it contains the core data set for organ donation and transplant information, which also includes linked data from other provincial data systems including provincial labs and CERNER. Mr. Lun explains that CERNER is the electronic medical record system currently used by the BC Liver Transplant Program.
[22] With respect to the Province-Wide Data Request, Mr. Lun deposes the data is not contained within PROMIS, and that the information requested would likely be located in general practitioners and specialists offices, many of which are privately run.
[23] UBCIC has not explained how the province-wide data it is seeking could be identified by the Respondents, given the number and identities of patients implicated in the Province-Wide Data Request appear to be unknown. Further, even if the patients were identified/identifiable, UBCIC has not explained how the data could be obtained by the Respondents, given the Respondents do not appear to have control over general practitioner or specialists offices or records.
[24] In support of its position that PHSA has access to province-wide data about people with liver and/or substance use problems, UBCIC points to a number of PHSA publications, and the 2018 Mandate Letter issued to PHSA by the Minister of Health. I do not find this information useful. UBCIC simply sets out excerpts of information, without explaining how these excerpts demonstrate PHSA has possession of or access to the specific information UBCIC is seeking in relation to the Province-Wide Data Request. UBCIC simply asserts, without meaningful explanation, that the Respondents’ claim that they do not have access to the province-wide data is not credible.
[25] I do not accept UBCIC’s assertion on this point. If UBCIC was of the view that the Respondents could easily (or otherwise) access the province-wide data, it ought to have explained how this would be possible. Given that the request is about every person in the province (including parts of the province serviced by health authorities other than VCHA or PHSA) with certain medical diagnoses during the Time Period, I do not understand how such information would be identified or collected by the Respondents, or what resources would be involved if such collection were possible.
[26] Ultimately, I accept the Respondents’ evidence that they do not have possession or control over the information in the Province-Wide Data Request. Even if they did, given the unknown number of people in BC who may have had the specific diagnoses UBCIC sets out for the Time Period, and given the unknown volume and location of medical records in relation to that unknown number of people, I would find the request disproportionate.
B. Referred Patients Data Request
[27] As I explain below, the information UBCIC seeks in relation to the Referred Patients is arguably relevant to issues in dispute in this complaint. However, to the extent that the information sought is contained outside of the PROMIS database, the request is disproportionate. In the present case, the just and timely resolution of this complaint is best facilitated by an order requiring the Respondents to produce only the information contained within the PROMIS database.
[28] I begin by assessing the relevance of the information sought. Then I move on to consider the Respondents’ arguments about patient confidentiality, proportionality, and fairness.
1. Relevance
[29] The Respondents argue UBCIC has not established that the information it seeks is arguably relevant to issues in dispute in this complaint. They say UBCIC has not provided evidence of Dr. Hart’s credentials, or evidence from Dr. Hart about how he expects the requested information would assist him or the Tribunal in assessing the live issues in the complaint. The Respondents say the requested information is for all patients, not just patients who are either members of the identified classes or people who have one or both of the discrete and severe liver conditions that are associated with the need for liver transplant. They say they have already disclosed significant medical information about members of the defined classes that have signed authorizations for the release of their records, and this additional request for information is outside of the scope of the complaint.
[30] In my view, the live issues in this complaint include whether there is systemic differential treatment between members of the two defined classes, and other people with liver-related health issues that have been engaged with the province’s liver transplant system. As such, simply because the request is for information about patients outside of the two defined classes, does not mean that information sought is not arguably relevant. Oftentimes in cases alleging systemic discrimination, the Tribunal is called upon to assess how a particular group is treated compared to a larger population.
[31] Insofar as the present request relates to all patients that were referred to the BC Liver Transplant Program, not just the subset comprised of the defined classes, the information UBCIC seeks is arguably relevant to issues in dispute in this complaint. Information about the Referred Patients’ health status at various times, dates of referrals, diagnoses, MELD-Na scores, alcohol/substance use, assessments within the Liver Transplant Program, and clinical outcomes, is arguably relevant to whether the class members were treated differentially than others who were referred to the Liver Transplant Program.
[32] I accept the Respondents’ evidence that whether a given patient is Indigenous may or may not be recorded when a patient is first referred to the Liver Transplant Program. However, it appears that if and when a patient is placed on the transplant list, their ethnicity is recorded at that time. I am satisfied that to the extent ethnicity may be recorded initially, and is definitely recorded when a patient has been placed on the transplant list, this is enough information to allow for analysis of differential treatment based on ancestry and race.
[33] Further, in addition to race and ancestry, this complaint alleges discrimination on the basis of physical disability, and the requested data includes information about Referred Patients’ liver diagnoses, assessment by the Liver Transplant Program, and clinical outcomes. This information will presumably include information about what kind of liver affliction a particular patient has upon referral to the Liver Transplant Program, thus allowing for comparison of outcomes as between class members (who have specific types of liver afflictions) and other Referred Patients. As such, to the extent that data about a given patient’s ethnicity is not available, the remaining data is still arguably relevant to differential treatment based on physical disability.
2. Patient Confidentiality
[34] The Respondents submit that if the Tribunal were to order disclosure of the Referred Patients’ data, UBCIC would have access to a critical timeline for a given patient’s referral, review, transplant, and other information relating to individual patients’ medical histories. The Respondents say this information could identify a patient, as the information is clearly unique to the individual.
[35] The Respondents further argue that except for six people for which UBCIC has medical records already, none of the 1,621 patients (comprised of both class members and non-class members) have consented to disclosure of their information. The Respondents say disclosure of these patients’ data without their consent would breach their confidentiality and contravene the Tribunal’s previous disclosure decision in this proceeding. In support of their position, the Respondents point to Union of BC Indian Chiefs v. Provincial Health Services Authority and others, 2024 BCHRT 300 [UBCIC No. 1], in which the Tribunal denied UBCIC access to class members’ redacted medical records without their consent.
[36] In UBCIC No. 1, the Tribunal discussed the inherently private and sensitive nature of medical information. The Tribunal reviewed the applicable legal principles, and held that only where there is a paramount reason to override a patient’s right to confidentiality should medical information be disclosed without a patient’s consent: UBCIC No. 1, at para. 9. Further, the Tribunal explained that despite the Code’s quasi-constitutional status, a human rights complaint, on its own, is not such a paramount reason: UBCIC No. 1, at para 16.
[37] In discussing the privacy interests at issue, the Tribunal found that even in redacted form, the medical records of class members would contain substantial personal information about individuals, such as:
[A] thorough review of the patient’s medical and social history; past and present relevant diseases or infections, including sexually transmitted and hepatitis infections; the patient’s history of alcohol and substance use; an in depth social work review addressing the patient’s living circumstances, family supports, and social factors that may impact the success of the transplant; current symptoms and impact of cirrhosis; laboratory results; and commentary on a patient’s life expectancy.
UBCIC No. 1., at para. 8
[38] The Tribunal held that given the nature and extent of the above information, even if members of the public would not know who the Tribunal would be referring to in any final decision, the individual whose unique life story was set out in the decision would know. Ultimately the Tribunal held that it was impossible to redact a patient’s life story from their full medical records: UBCIC No. 1, at para 15.
[39] I find that such is not the case in relation to the present data request. Here, UBCIC is not seeking full medical records which disclose unique individual stories. Rather, it is seeking limited, de-identified, data in relation to the Referred Patients. Given the high-level nature of the data, I find it unlikely that disclosure of the data would identify individual patients to UBCIC, or result in an individual patient recognizing their life story upon reading the Tribunal’s final decision in this complaint.
[40] Unlike in cases such as Logan v. Hong, 2013 BCCA 249, where the plaintiff had requested the name and contact information in relation to patients who had received a certain medical treatment, the data request in this case does not include any identifying information about the Referred Patients. Therefore, disclosure of certain data points within Referred Patients’ records does not result in an inherent “invasion of privacy”: Logan, at para. 11, as data produced to UBCIC will not be connected to the identity of the Referred Patients.
[41] Further, specifically with respect to the information that the Respondents agree is available in PROMIS, the information being requested is not as specific or as sensitive as the information contained in the medical records that were sought in UBCIC No. 1. Here, the request is for the dates of referral, diagnosis, assessment, and treatment of the Referred Patients, certain of the Referred Patients’ liver functioning scores (e.g. MELD-Na scores), and Referred Patients’ clinical outcomes. Unlike in UBCIC No. 1, I am satisfied that de-identifying this limited data would sufficiently safeguard the privacy interests of the Referred Patients.
[42] To the extent that UBCIC is seeking more sensitive information about the Referred patients’ substance use and/or social functioning, the Respondents have advised that this information is not tracked in PROMIS. In accordance with my ultimate ruling on this application, the Respondents are not required to produce this information, thus the Referred Patients’ privacy interests are not engaged in relation to this information.
[43] Although in UBCIC No. 1, the Tribunal found the potential probative value of the medical records did not outweigh the prejudice to the privacy of patients who did not know about or consent to disclosure of their information, here, the balance of interests is different. In this case, the data being sought is potentially highly probative of UBCIC’s allegation that class members are treated differently than non-class members in relation to access to liver transplants. UBCIC submits that access to this data is vital to its expert’s ability to identify any statistically-linked differential treatment. Statistical analysis of the existence or absence of differential treatment may help the Tribunal decide an important issue in dispute in this complaint. Given the data being sought (that is available in the PROMIS system) is high-level, limited, de-identified, and not as specific or sensitive as the medical records sought in UBCIC No. 1, the potential prejudice to the Referred Patients is minimal. As such, the balance in this case favours disclosure.
3. Proportionality
Scope of Disclosure Rules
[44] With respect to proportionality, the Respondents first submit that the information UBCIC is requesting in relation to the Referred Patients goes beyond the scope of the Tribunal’s disclosure Rules. In particular, they argue that the Tribunal has drawn a distinction between ordering a party to produce documents that are in its possession and control, and ordering a party to create documents or generate statements going to the factual basis of the complaint: Ali v. Allard and Company, 2003 BCHRT 5; National Automobile, Aerospace, Transportation and General Workers of Canada (CAW – Canada) Local 111 v. Coast Mountain Bus Company (No. 6), 2005 BCHRT 435 [CMBC No. 6].
[45] The Respondents submit that the information UBCIC is requesting is not located in any “documents” that they have in their possession or control, and they should not be required to generate documents as part of their disclosure obligations.
[46] I begin by noting that “document” is defined in the Tribunals’ Rules as including “any form of recorded or stored information”. The Respondents agree that certain of the information sought is captured within the PROMIS database. That information, therefore, is a form of recorded or stored information and is subject to a disclosure order.
[47] That said, I agree with the Respondents that the disclosure Rules do not require a party to “create” a document. In Ali, cited by the Respondents, the Tribunal refused to order a complainant to create and disclose documents containing particulars of the mitigation efforts she made in relation to the remedy she was seeking. In coming to its decision, the Tribunal held that the disclosure rules are “not intended to require parties to create documents or generate statements going to the factual basis for the remedy sought”: Ali at para. 24. The Tribunal ultimately held that if the respondent wanted particulars, it could seek production of particulars under a different Rule in place at the time.
[48] I do not find Ali particularly useful in the analysis of the present request. Here, UBCIC is not seeking particulars. The information being requested is not something that the Respondents’ witness would be readily able to testify about at the hearing (such as a person’s mitigation efforts) unless pulled from the PROMIS database and analysed. This is precisely what is being proposed by UBCIC.
[49] In CMBC No. 6., also cited by the Respondents, the Tribunal refused to order the respondent to create personalized attendance records for approximately 762 employees. In deciding not to order disclosure, the Tribunal acknowledged that the information required to create the attendance records existed. However, it agreed with the respondent that their disclosure obligations did not extend to creating 762 attendance records from that data.
[50] In some cases, it may be preferrable for a party to create a document rather than to disclose broad raw data. In National Automobile, Aerospace, Transportation and General Workers of Canada (CAW – Canada) Local 111 v. Coast Mountain Bus Company (No. 8), 2005 BCHRT 508, while the Tribunal had declined to order the respondent to create documents in CMBC No. 6, the respondent subsequently agreed to create documents. It seems this was the most efficient way to produce the information sought. Similarly, in Kalyn v. Vancouver Island Health Authority (No. 2), 2007 BCHRT 441, the disclosure sought was arguably relevant but also broad and impacted privacy interests. In that case, the respondent suggested an order that the respondent create a document identifying the relevant information, and the Tribunal found this was a sensible first step: paras. 66-69.
[51] This is one of those cases where one party is in exclusive possession and control of information which is critical to an understanding of the matters at issue. As I said above, the information is recorded and is subject to an order for disclosure. It must be generated in some fashion to produce it on a disclosure order. This is not only permitted by the disclosure rules but required, where disclosure is otherwise appropriate. Further, if possible, it should be generated in a way that facilitates its use in the complaint process. I am not persuaded that the information remains undisclosable merely because it is stored in a system and the Respondents must generate a document to provide it.
[52] Here, for myriad reasons, including privacy reasons, the information about the characteristics of people referred to the Liver Transplant Program is not publicly accessible, except, as UBCIC points out, for research purposes on application. The reality of the situation is that UBCIC’s allegation of systemic discrimination arising from differential treatment of class members may be difficult to assess in the absence of information about the full population of Referred Patients, which information is held exclusively by the Respondents. As I have set out above, statistical analysis of the requested information to identify the existence or absence of differential treatment may help the Tribunal decide an important issue in dispute in this complaint. In addition, as I explain below, the subset of the requested data that is tracked on the PROMIS database does not appear to require significant resources to generate. Given the potential probative value of the data being sought, the apparent inability of UBCIC to access the data from a different source, and the relative ease with which the data can be generated, I am persuaded that it would facilitate the just and timely resolution of this complaint to require the Respondents to produce the subset of data sought by UBCIC that is currently held on PROMIS.
Production of Information Outside of PROMIS
[53] Beyond their argument about the scope of the Rules, the Respondents argue that the request is disproportionate in the circumstances, as it is for a large volume of information that is not readily accessible. In particular, the Respondents submit that not all of the information UBCIC is requesting in relation to the Referred Patients is stored in the PROMIS database, and in fact, some of the information is only located in individual patient charts.
[54] Mr. Lun deposes that for the information that is not tracked in the PROMIS database, the Respondents would have to make a request to the appropriate health authority for a person to access each of the 1,621 Referred Patients’ charts, and manually search for the requested information and record it in a presentable way. He estimates this would take a person between 3-6 hours for each of the 1,621 patients, given the multiple categories of data being requested. He estimates this would result in years worth of work.
[55] The Respondents submit that given the multiple categories of data that are being requested in relation to the 1,621 Referred Patients, disproportionate time and other resources would be required to search for and record information contained in individual patient charts.
[56] In their submissions, the Respondents do not distinguish between the time and work involved in accessing and producing the categories of data currently available in PROMIS, and the time and work involved in accessing information that is not currently available in PROMIS. However, Mr. Lun’s evidence concerning the resource intensity of producing the requested information is about accessing individual charts and/or information not contained within PROMIS. As such, I understand that the Respondents do not argue that information contained within PROMIS would be significantly difficult or time/resource-consuming to produce.
[57] As I explain below, UBCIC’s request for data is being made very late within the Tribunal’s complaint resolution process, with only approximately two and a half months left before the hearing. This complaint was originally filed in June 2020, and it has taken over five years for this complaint to proceed to the point that it is ready for hearing. The hearing was originally scheduled to commence this month, but the August hearing dates have already been adjourned. Given the length of time that this complaint has remained outstanding, there can be no doubt that it is in the interests of fairness and justice for all involved parties that this complaint proceed to a hearing in November and move forward to resolution. Given this context, it is my view that the information UBCIC seeks which is outside of the PROMIS database, and which would require the Respondents to devote substantial resources in order to produce, is disproportionate.
[58] I accept Mr. Lun’s evidence that having to manually search 1,621 patient charts for even a few of the data points requested by UBCIC, would be an onerous task that would take more time than is currently available prior to the hearing. I further find that the Tribunal would have to adjourn the hearing for a lengthy period of time in order to allow sufficient time for the Respondents to manually locate all of the data for all of the patients. While I agree that the information contained outside of the PROMIS database is arguably relevant and probative of issues in dispute in this complaint, I am not satisfied that it is so crucial as to warrant derailing the hearing in order to produce.
[59] As I have set out above, my understanding is that it would not be unduly onerous or time-consuming for the Respondents to produce the data that they have confirmed is contained within the PROMIS database. Indeed, the whole purpose of a database is to store data in a way that is easily accessible and usable for various people and purposes. Improving accessibility of data appears to be a priority for at least PHSA, which emphasises the importance of expedited data access in the excerpt of its 2019/2020 Annual Service Plan Report referenced by UBCIC in its reply submissions. In any event, I am satisfied that an order requiring the Respondents to produce the subset of the data requested by UBCIC that they confirm is located within the PROMIS database, is not disproportionate in the circumstances. I will set out the details of the information I order to be produced at the end of this decision.
4. Fairness
[60] The Respondents argue that UBCIC’s request has come very late in the process, without explanation. They say UBCIC listed Dr. Hart as an expert witness as of November 2024, and that the delay in seeking the information in the present application has led to UBCIC missing the deadline for the provision of expert reports. The Respondents say that they would be prejudiced if the Tribunal were to allow UBCIC’s application, thus allowing UBCIC to provide expert evidence past the expiry of the deadline for expert reports. They say that if Dr. Hart provides a report, they would need to raise Dr. Hart’s evidence with their own expert, or seek a new expert to provide evidence in response. As the hearing is fast approaching, they say this would be prejudicial for them.
[61] Additionally, the Respondents argue that the Tribunal sets deadlines for a reason, and to allow a party to miss a Tribunal deadline without explanation would render Tribunal deadlines meaningless.
[62] The failure to comply with Tribunal deadlines without reasonable explanation can result in a waste of time and resources for both the Tribunal and other parties. The Tribunal sets deadlines in order to facilitate the just and timely resolution of complaints. The expectation is that parties will make their best efforts to abide by Tribunal deadlines, and will provide explanations and advance notice, where possible, in cases where they are unable to meet a deadline. Indeed, the Tribunal has held that repeated failure to abide by Tribunal deadlines without reasonable explanation can amount to improper conduct for the purposes of s. 37(4) of the Code, and has awarded costs against non-compliant parties: Prosko v. District of Taylor (No. 2), 2024 BCHRT 207.
[63] In the present case, UBCIC has not explained why it has made this disclosure request in relation to Dr. Hart’s expert report so late. Neither has UBCIC explained whether and how the delay in the provision of Dr. Hart’s expert report past the deadline will impact hearing fairness, and whether and how any unfairness can be remedied before the hearing.
[64] Rules 21(1) and (2) of the Tribunal’s Rules, require disclosure of expert reports and/or summaries of expert opinions 90 days in advance of a hearing. These Rules ensure parties have sufficient time prior to a hearing to review proposed expert opinions and prepare their case in response. In the present case, the Respondents indicate they may wish to provide a rebuttal expert or expert report. Such is their right under the Rules, and they must have sufficient time to do so.
[65] Rule 21(3) provides that a party who wishes to provide an expert report/summary in response to another party’s expert report/summary, has 30 days after receiving the original expert report/summary to do so. Rule 21(8) provides that the parties can agree to change the dates for delivery of expert reports/summaries.
[66] The hearing is still two and a half months away, and in my view, there may still be sufficient time for the exchange of expert reports/opinions prior to the hearing. Given the limited amount of data I am ordering the Respondents to produce, and given the data is all contained in the PROMIS database, I do not expect production to take a long time. The Respondents did not provide any estimate of how much time it would take to produce only information contained within PROMIS, but I will estimate that the information could be produced within two weeks of this decision. Further, Counsel for UBCIC confirmed, at the last hearing management conference, that Dr. Hart would likely be able to produce his expert report within two weeks of receiving the data. If the parties are able to adhere to a timeline of two weeks each for their respective parts, then there will still be one and a half months before the hearing for the Respondents to consider Dr. Hart’s report, show it to their expert, and/or commission another expert to provide a responsive opinion. In my view, this may be sufficient time for the Respondents, and I decline to deny the order merely because the Respondents may raise an objection about the timing of Dr. Hart’s report.
[67] I recognize that although the timing may be sufficient, the lateness of this application for disclosure and resultant delay in the provision of expert reports will likely have caused the Respondents some prejudice. Despite having listed Dr. Hart as an expert witness since November 2024, it appears that UBCIC did not ask him what data he needed for his opinion until June and July of this year, and did not request the information from the Respondents until three weeks before the deadline for provision of expert reports. To the extent that the Respondents may be prejudiced by having to expedite their efforts in relation to hearing preparation due to UBCIC’s conduct, this decision does not preclude them from seeking any order, including an order for costs under s. 37(4) of the Code.
IV CONCLUSION
[68] For the above reasons, I order the Respondents to produce the subset of the data requested by UBCIC that the Respondents confirm is contained within the PROMIS database as set out in paragraphs 9-11 of this decision. For clarity, this includes any information recorded in PROMIS which identifies the Referred Patients’ ethnicity, including whether a patient is identified as being Indigenous. I order that this data be produced for the Time Period, which is February 11, 2019, to February 10, 2025.
[69] The Respondents will have until September 1, 2025, to provide UBCIC with the above-noted data. If the Respondents anticipate not being able to meet this deadline, they must advise the Tribunal immediately, and provide an estimate of the time required.
Shannon Beckett
Tribunal Member