Executive Summary: Key Legal and Evidentiary Issues

• The constitutionality of amendments to the Nova Scotia Personal Health Information Act (PHIA) and related regulations was challenged, focusing on privacy and Charter rights.

• Applicants sought public interest standing to bring a constitutional challenge, while the government opposed standing and sought summary judgment.

• The evidentiary value of affidavits containing opinions, feelings, and attached news articles was contested, with the court limiting admissibility to relevant factual matters.

• The court considered whether the applicants had a genuine interest and sufficient connection to the issues to justify standing.

• The effectiveness and reasonableness of the applicants as parties to bring the matter before the court were evaluated.

• The question of costs was left unresolved, pending agreement or further submissions by the parties.

Background and facts

This case arose from a constitutional challenge brought by several individuals, including physicians and patients, as well as the Nova Scotia Civil Liberties Association, against the Attorney General of Nova Scotia. The applicants contested the validity of amendments to the Personal Health Information Act (PHIA) and the enactment of the Electronic Health Records Regulations, which collectively mandated the disclosure of personal health information to the provincial government for the creation and maintenance of an electronic health records system. The applicants argued that these legislative changes infringed upon their rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms, specifically concerning privacy and protection against unreasonable search and seizure.

The legislation at issue included new subsection 110(1)(na) of the PHIA, which empowered the government to require custodians of health records to disclose personal health information for health system planning and electronic records purposes. The related regulations defined the roles of providers, the Minister, and electronic medical record (EMR) providers, and outlined the scope of access and safeguards for personal health information. The applicants, including two physicians, expressed concern that the mandatory disclosure of patient records to a government-controlled database breached both professional ethics and personal privacy. The Nova Scotia Civil Liberties Association joined as an organization dedicated to defending civil liberties and privacy rights.

Legal and evidentiary issues

The court was asked to decide two key motions: whether the applicants should be granted public interest standing to pursue their constitutional challenge, and whether the respondents were entitled to summary judgment on the basis that the applicants lacked private interest standing. The government objected to the admissibility of certain affidavit evidence, particularly statements of opinion, feelings, and attached news articles, arguing these were not proper evidence. The court agreed in part, allowing some personal context as relevant but excluding broad opinions and hearsay.

Discussion of policy terms and clauses

The court examined the statutory and regulatory framework in detail. Section 110(1)(na) of the PHIA and the related regulations allowed the Minister of Health and Wellness to require disclosure of personal health information for system management and electronic records. The regulations specified that only the patient, those with the patient’s consent, or agents under confidentiality agreements could access identifiable information, with broader access permitted only in de-identified form for planning or research. The applicants’ challenge centered on whether these provisions sufficiently protected privacy rights under the Charter.

Outcome and reasoning

Justice Boudreau found that the applicants raised a serious justiciable issue regarding the constitutionality of the legislative scheme and that they had a genuine interest in the outcome, both as individuals affected by the law and as representatives of broader public concerns. The court determined that the applicants were well-positioned to bring the challenge, supported by experienced counsel, and that there was no more effective alternative for bringing the matter before the court. As a result, the court granted public interest standing to the applicants and dismissed the need to address the government’s summary judgment motion at this stage.

Successful party and monetary award

The applicants were successful in obtaining public interest standing to proceed with their constitutional challenge. No monetary award, damages, or costs were granted or ordered in this decision. The issue of costs was left open for the parties to resolve by agreement or, failing that, by further written submissions to the court. Thus, the total amount ordered in favor of the successful party cannot be determined at this stage.