Court rules disclosure principles don’t override privacy in PNE E. coli lawsuit

Plaintiffs sought a list of potential cases from the alleged 2009 outbreak, which would have helped locate witnesses for their position at trial.

Vancouver Coastal Health cannot be compelled to release the names of people who allegedly contracted E. coli-related infections at a PNE petting zoo in 2009 to three other plaintiffs suing over the matter, a B.C. Supreme Court has ruled.

The decision, which was supplementary to the larger, long-running litigation, means that the plaintiffs face a bigger challenge in locating potential witnesses to corroborate their claims that the PNE, Vancouver Coastal Health and a local government failed to take reasonable steps to prevent transmission of the disease.

The plaintiffs, Eden Rose Svangtun and brothers Tyler Enzo and Jakob William Nadalin, through their guardians, allege that they contracted E. coli at a PNE petting zoo in an outbreak that may have ultimately affected 13 individuals, 11 of them children.

Lawyers for the plaintiffs sought from Vancouver Coastal Health an un-redacted list of E. coli cases from the 2009 incident, arguing that general principles of disclosure applied and that any invasion of privacy was outweighed by the necessity for proper administration of justice. Plaintiffs sought a list of potential cases from the 2009 E. coli outbreak, which allegedly resulted from visits to a petting zoo. B.C. Supreme Court Master Shelagh Scarth noted that the plaintiff’s argument was that “justice requires disclosure of the names of the persons who were affected,” however she disagreed.

“(Vancouver Coastal Health) cannot be compelled to disclose the information sought by the plaintiffs,” Scarth wrote in dismissing the plaintiffs’ application because their arguments did not amount to an acceptable exception to rules protecting the privacy of individuals under the Freedom of Information and Protection of Privacy Act.

In her ruling, Scarth cited sections of the B.C. Public Health Act that allow health authorities to collect personal information to address public-health concerns, but with the clear purpose of ensuring such information remains confidential.

“In my view, the general purpose of the statue does not provide support for interpreting (the provisions) as authorizing the use of collected information for the purpose of adjudication of civil litigation brought by others,” she wrote.

In an emailed statement, the plaintiffs’ lead lawyer, Michael Gianacopoulos, wrote that they sought to know the names of anyone else affected by the 2009 E. coli outbreak, the first ever string of such cases at the annual agricultural fair.

“We are now in the process of reviewing this ruling to understand what it means and to identify its implications on the children’s claim,” said Gianacopoulos, a partner in the Vancouver firm Farris LLP. “Ultimately, it is important to consider the affect this ruling may have on establishing that the E. coli outbreak and illnesses resulted from the defendants’ failure to meet the legally required standard of care.”

Claims in the case have not been proven in court.

In spring 2018, the plaintiffs made a successful application to have a trial date set for Nov. 26, 2018, which was to last five weeks, and then was adjourned to a date in 2020 to be heard over eight weeks.

The argument was that the extent of the injuries to Svangtun as a result of the E. coli infection, which included impaired kidney function, a brain injury and damage to multiple organs, could not be properly assessed until she was at least age 15.

Svangtun was three at the time of the alleged infection and 12 at the time of the 2018 adjournment hearing, which was decided by Justice Barbara Norell.

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