Niemela v. Malamas
Page 19
[63]
While the decision in L.D. was subsequently overturned, the British Columbia
Court of Appeal endorsed the comments quoted above: 2012 BCCA 491 at
para. 19.
[64]
However, Sewell J.’s comments must be read in context. In that case, the
plaintiff commenced a proposed class proceeding against the Provincial Health
Services Authority (“PHSA”). At the time of the birth of the plaintiff’s child, the PHSA
had a policy to take a blood sample from newborns with parental consent in order to
test for possible genetic disorders. Samples were retained for 19 years to facilitate
re-testing in the event of subsequent illness, for quality assurance and to develop
better or new test processes. The plaintiff mother gave consent to have the samples
taken, but claimed she would not have given consent had she been aware of the
storage of the samples beyond the initial testing period.
[65]
The plaintiff's statement of claim alleged the blood samples were obtained
through negligent or fraudulent concealment of material facts. It further alleged the
collection and storage of the samples was an unlawful seizure contrary to s. 8 of the
Charter and a tort under the Privacy Act. The Health Authority applied for dismissal
of the plaintiffs' claims pursuant to Rule 9-6(4). The chambers judge found it unlikely
the mother would have refused consent to the taking of the samples had full
disclosure of their storage and use been provided. The judge dismissed all of the
claims and granted leave to amend to address the issue of whether the Health
Authority acted improperly in making the samples available to outside parties for
medical research purposes, thereby giving rise to a tort under the Privacy Act or a
breach of fiduciary duty. The plaintiffs appealed.
[66]
The appeal was allowed on the basis that the issues raised by the action
were unsuitable for resolution under Rules 9-6(4) and (5) (at para. 20).
2015 BCSC 1024 (CanLII)
issue of law is well settled by authoritative jurisprudence. It seems to me that
Rule 9-7 is better suited for deciding novel points of law because on a
summary trial the court will have a more complete record framing the
question of law. I also note that Rules 9-3 and 9-4 are available for
determining points of law on an agreed record.
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