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1997 Legislative Session: 2nd Session, 36th Parliament

THIRD READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

Certified correct as passed Third Reading on the 24th day of July, 1997

Ian D. Izard, Law Clerk

HONOURABLE JOY MacPHAIL

MINISTER OF HEALTH AND

MINISTER RESPONSIBLE

FOR SENIORS

BILL 37 – 1997

TOBACCO DAMAGES RECOVERY ACT

Contents

Section

Part 1 – Introductory Provisions

Definitions

Minister's certificate

No limitation on rights

Part 2 – Recovery of the Cost of Health Care Benefits

Right to recover

Obligation to claim

Right to intervene

Final disposition of claim or action

Appeal right

Action by government

Contributory negligence

Payment to minister

Indemnification for costs

Direct action by government

Statistical evidence to establish causation and quantify of damages

Limitation periods

Liability based on risk contribution

Joint and several liability in tobacco related wrongs

Apportionment of liability in tobacco related wrongs

Part 3 – General

Regulations

Commencement

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province

of British Columbia, enacts as follows:

Part 1 – Introductory Provisions

Definitions

1 In this Act:

"beneficiary" means a spouse, parent or child,

as defined in the Family Compensation Act , of a deceased insured person;

"benefits claim" means a claim for the recovery of the cost of health care benefits;

"cost of future health care benefits" means the estimated total amount of the cost

of health care benefits, resulting from disease, that could reasonably be expected

will be provided to an insured person after the date of settlement of a benefits

claim or the first day of trial of an action for a benefits claim, whichever first

occurs;

"cost of health care benefits" means the total amount of

(

a) the cost of past health care benefits provided to an insured person, and

(

b) the cost of future health care benefits to be provided to that insured person;

"cost of past health care benefits" means the total cost of the health care benefits,

resulting from disease, that are provided to an insured person before the date of

settlement of a benefits claim or the first day of trial of an action for a benefits

claim, whichever first occurs;

"disease" means

(

a) an impairment of health of a person, or

(

b) death resulting from an impairment of health of a person

as a result of that person's exposure to a tobacco product;

"exposure" means any contact, ingestion, inhalation or assimilation;

"health care benefits" means

(

a) benefits as defined under the Hospital Insurance

Act , and

(

b) benefits as defined under the Medicare Protection

Act ,

and includes any other health care benefits designated by regulation;

"insured person" means

(

a) a person, including a deceased person, who was provided with health care

benefits, or

(

b) a person who is entitled to be provided with health care benefits;

"manufacturer" means a person who manufactures a tobacco product;

"personal representative" means a person

(

a) who is the personal representative of a deceased insured person, and

(

b) who has the right to bring an action under

section 3 of the Family Compensation Act on behalf of the beneficiaries,

and includes a person described in

section 3 (4) of that Act;

"tobacco product" means tobacco and any product manufactured from tobacco and

intended for use by smoking, inhalation or chewing, and includes nasal and oral

snuff;

"tobacco related wrong" means a tort or breach of a common law or statutory

obligation committed by a manufacturer that causes or is a contributing factor in

causing disease.

Minister's certificate

(1) The minister may issue one or more certificates in respect of an insured person or

a class of insured persons setting out

(

a) the cost of past health care benefits, and

(

b) the cost of future health care benefits.

(2) For the purposes of an action or proceeding, described in this Act, to recover the

cost of health care benefits,

(

a) a certificate under subsection (1) respecting the cost of past health care

benefits is conclusive evidence of that cost, and

(

b) a certificate under subsection (1) respecting the cost of future health care

benefits is evidence of that cost.

(3) After there has been a determination of the health care benefits that could

reasonably be expected will be provided to an insured person or a class of insured

persons in the future, a certificate issued under subsection (1) respecting the cost

of those future health care benefits is conclusive evidence of that cost.

No limitation on rights

3 Nothing in this Act limits the rights of any person to commence an action or

proceeding on his or her own behalf or on behalf of a class of persons in respect of any

matter in respect of which the government may commence an action or proceeding

under this Act.

Part 2 – Recovery of the Cost of Health Care Benefits

Right to recover

4 If, as a result of a tobacco related wrong, an insured person suffers disease for which

he or she has been provided or will be provided health care benefits, the insured person

or his or her personal representative has the same right to recover the cost of the health

care benefits that have been provided or will be provided as the insured person would

have had if he or she

(

a) were not an insured person when the health care benefits were provided, or

(

b) were required or would be required to pay for provision of those health care

benefits.

Obligation to claim

(1) If, in his or her own name or as a member

of a class of persons under the Class Proceedings Act , an insured person

referred to in

section 4 of this Act or his or her personal representative commences

an action against the person whose tobacco related wrong is alleged to have

resulted in the insured person's disease, the insured person or his or her personal

representative must include a benefits claim in that action.

(2) Subsection (1) of this

section does not apply if the government has commenced

an action under

section 9 (1) to recover the cost of health care benefits provided

or to be provided to the insured person.

(3) Within 7 days after commencing an action under subsection (1), the insured

person or his or her personal representative or, if represented, his or her lawyer

must give written notice of the action, in the prescribed form, to the minister.

(4) Despite

section 4 and subsection (1) of this section, the government may assume

the conduct of an action under subsection (1) as it relates to the benefits claim.

(5) Within 30 days after receipt of the notice under subsection (3), the minister may

give written notice to the insured person or his or her personal representative or,

if represented, his or her lawyer

(

a) advising of the appointment of the government's own lawyer to assume the

conduct of the action as it relates to the benefits claim, or

(

b) requiring the benefits claim to be discontinued.

Right to intervene

6 The government may intervene in an action described in

section 5 (1).

Final disposition of claim or action

(1) No action described in

section 5 (1) for a benefits claim may be discontinued or

dismissed by consent unless

(

a) the consent of the minister is filed with the court,

(

b) the lawyer appointed under

section 5 (5) (

a) consents, or

(

c) the notice of the minister under

section 5 (5) (

b) is filed with the court.

(2) In an interlocutory application before the trial of an action described in

section 5 (1), the court must not set aside, dismiss or strike out a benefits claim

without first giving the government reasonable opportunity to appear and make

representations.

(3) Unless the court is satisfied that the minister was given the notice required in

section 5 (3), the court must not make an order of final disposition of an action

described in

section 5 (1).

Appeal right

(1) If judgment has been given in an action described in

section 5 (1) and the insured

person or his or her personal representative has not appealed the decision within

the permitted appeal period, the government, on behalf of and in the name of the

insured person or his or her personal representative, may appeal the judgment

within 45 days after expiration of the appeal period.

(2) Before bringing an appeal under subsection (1), the government must

(

a) give the insured person or his or her personal representative and the

defendant written notice of the government's intended action, and

(

b) file a copy of the notice in the court.

(3) After the notice is given under subsection (2), all proceedings under the judgment

are stayed until

(

a) the government files in the court a copy of a notice given under

subsection (4), or

(

b) the 45 day period referred to in subsection (1) expires,

whichever is earlier.

(4) If, after giving the notice under subsection (2), the government decides not to

appeal the judgment, the government must

(

a) give the insured person or his or her personal representative and the

defendant written notice of that decision, and

(

b) file a copy of the notice in the court.

Action by government

(1) Despite

section 4 or 5, if, as a result of a tobacco related wrong, an insured person

suffers disease for which he or she has been provided or will be provided health

care benefits, the government may commence an action on behalf of and in the

name of the insured person or his or her personal representative to recover the

cost of health care benefits that have been provided or will be provided to the

insured person.

(2) If the government intends to bring an action under subsection (1), the government

must give written notice

(

a) to the insured person, or

(

b) if the insured person is deceased,

(

i) to his or her personal representative, or

(ii) if no personal representative has been appointed, to his or her beneficiaries,

but the government is not required to obtain the permission of the insured person

or his or her personal representative or beneficiaries to bring the action.

Contributory negligence

10 If an insured person is found

(

a) to be contributorily negligent in an action described in

section 5 (1) or 9 (1),

and

(

b) to be entitled to recover only a percentage of the damages claimed,

the amount of the benefits claim that may be recovered is limited to the percentage

referred to in paragraph (b).

Payment to minister

(1) If, as a result of an action described in

section 5 (1) or 9 (1) or the settlement of

a benefits claim, a person recovers or holds any amount for the cost of health care

benefits, the amount recovered or held is a debt owed to the government.

(2) A person who recovers or holds any amount described in subsection (1)

(

a) holds that amount in trust for the government, and

(

b) must, within a prescribed period, submit that amount to the minister.

(3) A person liable to pay the amount of the cost of health care benefits as a result of

an action described in

section 5 (1) or 9 (1) or the settlement of a benefits claim

may submit that amount to the minister and receipt of that amount by the minister

discharges that person's liability to the extent of the amount submitted.

Indemnification for costs

12 The government must indemnify an insured person or his or her personal representative for any costs awarded against the insured person or his or her personal representative

(

a) in an action described under

section 5 (1), as those costs relate to the

conduct of the benefits claim,

(

b) in an appeal brought by the government under

section 8, and

(

c) in an action described under

section 9 (1).

Direct action by government

(1) Despite the government having the right to commence or having commenced an

action under

section 9 or having a right of recovery under

section 11, the

government may commence a direct action for damages against a person to

recover the cost of health care benefits incurred by the government resulting from

a tobacco related wrong.

(2) In an action under subsection (1), the government may recover its damages

whether or not there has been any recovery by other persons who have also

suffered damages resulting from the tobacco related wrong committed by the

person against whom the government's action is brought.

(3) In an action under subsection (1), the government may recover the cost of health

care benefits incurred in respect of treatment of a particular disease and, in that

event, the government is not required to identify individual insured persons who

have been provided or will be provided health care benefits for treatment of that

disease.

Statistical evidence to establish causation and quantify damages

(1) For the purposes of establishing causation and quantifying damages, on an

aggregate rather than individual basis, in an action by the government under

section 9 or 13 or in any class proceeding under the Class Proceedings Act

alleging a tobacco related wrong, the court may admit as evidence statistical or

epidemiological information based on medical, technical, sociological or other

relevant studies that would not otherwise be admissible as evidence, including

information derived from sampling, if the information was compiled in

accordance with principles that are generally accepted by experts in the field of

statistics.

(2) Section 30 (2) to (7) of the Class Proceedings Act applies to the evidence

admitted under subsection (1) of this

section whether or not the evidence is being

admitted in a class proceeding.

Limitation periods

(1) No action that is commenced within 2 years after the coming into force of this

section by

(

a) the government,

(

b) a person, on his or her own behalf or on behalf of a class of persons, or

(

c) a personal representative of a deceased person on

behalf of the spouse, parent or child, as defined in the Family Compensation

Act , of the deceased person,

for damages, including the cost of health care benefits,

alleged to have been caused by a tobacco related wrong is barred under the Limitation

Act .

(2) Any action for damages alleged to have been caused by a tobacco related wrong

is revived if the action was dismissed before the coming into force of this

section

merely because it was held by a court to be barred or extinguished by the

Limitation Act .

Liability based on risk contribution

(1) In this section, "manufacturer" means a person who manufactures a tobacco

product that is the same as, or substantially similar to, a tobacco product

manufactured by others.

(2) If, as a result of a breach of a legal duty,

(

a) one or more defendant manufacturers causes or contributes to a risk of

disease by exposing a person or persons to a tobacco product, and

(

b) a person, who has been exposed to a tobacco product that is the same as, or

substantially similar to, the tobacco product manufactured by the defendant

manufacturers, suffers disease as a result of that exposure,

a court may, if the plaintiff is unable to establish which defendant manufacturer

caused or contributed to the exposure of the person described in paragraph (

b) to

the tobacco product find each defendant manufacturer who caused or contributed

to a risk of disease under paragraph (

a) liable for that proportion of the damages

suffered as represented by that defendant manufacturer's contribution to the risk

of disease.

(3) The court may make a finding of liability under subsection (2) in accordance with

the following considerations:

(

a) the length of time the defendant manufacturer engaged in the conduct that

caused or contributed to the risk of disease;

(

b) the percentage of market share the defendant manufacturer had in the

tobacco product that caused or contributed to the risk of disease;

(

c) the degree of toxicity of any toxic substance in that tobacco product

manufactured by the defendant manufacturer;

(

d) the amount spent by the defendant manufacturer on marketing, including

advertising, the tobacco product that caused or contributed to the risk of

disease;

(

e) the degree to which the defendant manufacturer collaborated or acted in

concert with other manufacturers in any conduct that caused, contributed to

or aggravated the risk of disease;

(

f) the extent to which the defendant manufacturer conducted tests and studies

to determine the risks of disease resulting from exposure to the tobacco

product;

(

g) the extent to which the defendant manufacturer assumed a leadership role

in manufacturing or marketing the tobacco product;

(

h) the efforts the defendant manufacturer made to warn the public about the

risks of disease resulting from exposure to the tobacco product;

(

i) the extent to which the defendant manufacturer continued its manufacture

or marketing of the tobacco product after it knew or ought to have known of

the risk of disease resulting from exposure to the tobacco product;

(

j) affirmative steps the defendant manufacturer took to reduce the risk of

disease to the public;

(

k) any other considerations considered relevant by the court.

Joint and several liability in tobacco related wrongs

(1) This

section does not apply to a defendant manufacturer in respect of whom the

court has made a finding of liability under

section 16.

(2) Despite the Negligence Act and subject to

section 18 (5) of this Act, all defendant

manufacturers who are found liable in an action for a tobacco related wrong are

jointly and severally liable for all the damages suffered as a result of that wrong.

Apportionment of liability in tobacco related wrongs

(1) This

section does not apply to a defendant manufacturer in respect of whom the

court has made a finding of liability under

section 16.

(2) A defendant manufacturer who is found liable for a tobacco related wrong may

commence, against one or more of the defendant manufacturers found liable for

that wrong in the same action, an action or proceeding for contribution toward

payment of the damages resulting from that wrong.

(3) Subsection (2) applies whether or not the defendant manufacturer commencing

an action or proceeding under that subsection has paid all or any of the damages

resulting from the tobacco related wrong.

(4) In an action or proceeding described in subsection (2), the court may apportion

liability and order contribution among each of the defendant manufacturers in

accordance with the considerations listed in

section 16 (3) (

a) to (k).

(5) On application of a defendant manufacturer who is alleged to have committed a

tobacco related wrong, the court

(

a) must take into account the considerations listed in

section 16 (3) (

a) to (k),

(

b) may make an order designating the defendant manufacturer a minor

contributor if the application of joint and several liability to that defendant

would be unduly harsh, and

(

c) may specify the extent to which the minor contributor must contribute to

any damages under

section 17.

Part 3 – General

Regulations

(1) The Lieutenant Governor in Council may make

regulations referred to in

section 41 of the

Interpretation Act .

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make

regulations as follows:

(

a) designating a health care benefit for the purposes of

section 1, removing the

designation of a health care benefit and prohibiting the recovery of the cost

of past health care benefits or the cost of future health care benefits under

this Act;

(

b) specifying the costs of past health care benefits and the costs of future health

care benefits to be used as a basis for recovery under this Act, including

establishing the method of determining, assessing or calculating those

costs;

person or his or her personal representative may also represent or decline to

represent the government's interests in respect of a benefits claim;

(

d) exempting a person or a member of a class of persons from

section 11 and

(

e) providing for the sharing by the government of the costs of recovery of the

cost of health care benefits for the purposes of

section 5, including

(

i) defining what costs are to be included in the costs of recovery and

what proportion of those costs of recovery are to be shared by the

government, and

government may enter into with insured persons, their personal representatives or their lawyers, for insured persons to share those costs of

recovery;

(

f) prescribing forms to be used to administer this Act;

(

g) providing for the implementation and enforcement of the recovery of the

cost of health care benefits as provided under this Act.

Commencement

20 This Act comes into force by regulation of the Lieutenant Governor in Council.

Copyright © 1997: Queen's Printer, Victoria, British Columbia, Canada