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
1  Definitions
2  Minister's certificate
3  No limitation on rights
 
Part 2 -- Recovery of the Cost of Health Care Benefits
4  Right to recover
5  Obligation to claim
6  Right to intervene
7  Final disposition of claim or action
8  Appeal right
9  Action by government
10  Contributory negligence
11  Payment to minister
12  Indemnification for costs
13  Direct action by government
14  Statistical evidence to establish causation and quantify of damages
15  Limitation periods
16  Liability based on risk contribution
17  Joint and several liability in tobacco related wrongs
18  Apportionment of liability in tobacco related wrongs
 
Part 3 -- General
19  Regulations
20  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

2 (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

5 (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

7 (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

8 (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

9 (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

11 (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

13 (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

14 (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

15 (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

16 (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

17 (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

18 (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

19 (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;

(c) establishing the terms and conditions under which a lawyer for an insured 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 establishing terms and conditions applicable to that exemption;

(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

(ii) establishing the terms and conditions of any agreements that the 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.


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