1 (1) In this Act:
"affiliate" means affiliate as defined in section 1 of the Company 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 tobacco related 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 tobacco related 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;
"exposure" means any contact with, or ingestion, inhalation or assimilation of, a tobacco product, including any smoke or other by-product of the use, consumption or combustion of a tobacco product;
"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;
"joint venture" means an association of 2 or more persons, if
(a) the relationship among the persons does not constitute a corporation, a partnership or a trust, and
(b) the persons each have an undivided interest in assets of the association;
"manufacture" includes, for a tobacco product, the production, assembly or packaging of the tobacco product;
"manufacturer" means a person who manufactures or has manufactured a tobacco product and includes a person who currently or in the past
(a) causes, directly or indirectly, through arrangements with contractors, subcontractors, licensees, franchisees or others, the manufacture of a tobacco product,
(b) owns a trade-mark, trade name or brand name, registered or not, under which a tobacco product is promoted to the public,
(c) is related to a person described in this definition and has a right to use a trade-mark, trade name or brand name, registered or not, for the purpose of promoting a tobacco product to the public,
(d) for any fiscal year of the person, generates at least 10% of its worldwide revenues, determined on a consolidated basis in accordance with generally accepted accounting principles in Canada, from the manufacture or promotion of tobacco products,
(e) is related to a person described in this definition and is engaged in, or causes, directly or indirectly, other persons to engage in the promotion of a tobacco product, or
(f) is a trade association primarily engaged in
(i) the advancement of the interests of manufacturers,
(ii) the promotion of a tobacco product, or
(iii) causing, directly or indirectly, other persons to engage in the promotion of a tobacco product;
"person" includes a trust, joint venture or trade association;
"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;
"promote" or "promotion" includes, for a tobacco product, the marketing, distribution or sale of the tobacco product and research with respect to the tobacco product;
"tobacco product" means tobacco and any product that includes tobacco;
"tobacco related disease" means a disease caused or contributed to by exposure to a tobacco product;
"tobacco related wrong" means a tort or breach of a common law, equitable or statutory duty or obligation owed by a manufacturer to persons who have been exposed or might become exposed to a tobacco product that causes or contributes to disease;
"type of tobacco product" means one or a combination of the following categories:
(b) loose tobacco intended for incorporation into cigarettes;
(f) chewing tobacco;
(i) a prescribed form of tobacco.
(2) For the purposes of this Act, a person is related to another person if, directly or indirectly, the person is an affiliate of the other person or of an affiliate of the other person.
(3) For the purposes of subsection (2), a person is deemed to be an affiliate of another person if the person
(a) is a corporation and the other person, or a group of persons not dealing with each other at arm’s length of which the other person is a member, owns a beneficial interest in shares of the corporation
(i) carrying at least 50% of the votes for the election of directors of the corporation and the votes carried by the shares are sufficient, if exercised, to elect a director of the corporation, or
(ii) having a fair market value, including a premium for control if applicable, of at least 50% of the fair market value of all the issued and outstanding shares of the corporation, or
(b) is a partnership, trust or joint venture and the other person, or a group of persons not dealing with each other at arm’s length of which the other person is a member, has an ownership interest in the assets of that person that entitles the other person or group to receive at least 50% of the profits or at least 50% of the assets on dissolution, winding up or termination of the partnership, trust or joint venture.
(4) For the purposes of subsection (2), a person is deemed to be an affiliate of another person if the other person, or a group of persons not dealing with each other at arm’s length of which the other person is a member, has any direct or indirect influence that, if exercised, would result in control in fact of that person except if the other person deals at arm’s length with that person and derives influence solely as a lender.
(5) For the purposes of determining the market share of a defendant manufacturer for a type of tobacco product sold in British Columbia, the court must
(a) consider the defendant manufacturer and the manufacturers related to that defendant manufacturer to be one manufacturer, and
(b) calculate the defendant manufacturer’s market share for the type of tobacco product by the following formula:
| dms = | dm | x 100% |
| MM |
dms = the defendant manufacturer’s market share for the type of tobacco product from the date of the earliest tobacco related wrong committed by that defendant manufacturer to the date of trial;
dm = the quantity of the type of tobacco product manufactured or promoted by the defendant manufacturer that is sold within British Columbia from the date of the earliest tobacco related wrong committed by that defendant manufacturer to the date of trial;
MM = the quantity of the type of tobacco product manufactured or promoted by all manufacturers that is sold within British Columbia from the date of the earliest tobacco related wrong committed by the defendant manufacturer to the date of trial.
2 and 3 [Repealed 1999-39-61.]
4 to 12 [Repealed 1999-39-61.]
13 (1) The government has a direct and distinct action against a manufacturer to recover the cost of health care benefits that have been incurred, or will be incurred, by the government resulting from a tobacco related wrong.
(2) An action under subsection (1) is brought by the government in its own right and not on the basis of a subrogated claim.
(3) In an action under subsection (1), the government may recover the cost of health care benefits whether or not there has been any recovery by other persons who have suffered damage resulting from the tobacco related wrong committed by the person against whom the government’s action is brought.
(4) [Repealed 1999-39-62.]
(5) In an action under subsection (1), the government may recover the cost of health care benefits
(a) that have been provided or will be provided to particular individual insured persons, or
(b) on an aggregate basis, that have been provided or will be provided to that portion of the population of insured persons who have suffered disease as a result of exposure to a type of tobacco product.
(6) If the government seeks in an action under subsection (1) to recover the cost of health care benefits on an aggregate basis,
(a) it is not necessary
(i) to identify particular individual insured persons,
(ii) to prove the cause of disease in any particular individual insured person, or
(iii) to prove the cost of health care benefits that have been provided or will be provided to any particular individual insured person,
(b) the health care records and documents of particular individual insured persons or the documents relating to the provision of health care benefits to particular individual insured persons are not compellable except as provided under a rule of law, practice or procedure that requires the production of documents relied on by an expert witness,
(c) no person is compellable to answer questions with respect to the health of, or the provision of health care benefits to, particular individual insured persons,
(d) despite paragraphs (b) and (c), on application by a defendant, the court may order discovery of a statistically meaningful sample of the documents referred to in paragraph (b) and the order must include directions concerning the nature, level of detail and type of information to be disclosed, and
(e) if an order is made under paragraph (d), the identity of particular individual insured persons must not be disclosed and all identifiers that disclose or may be used to trace the names or identities of any particular individual insured persons must be deleted from any documents that are disclosed.
13.1 (1) In an action under section 13 for the recovery of the cost of health care benefits on an aggregate basis, subsection (2) applies if the government proves, on a balance of probabilities, that, in respect of a type of tobacco product,
(a) the defendant manufacturer breached a common law, equitable or statutory duty or obligation owed to persons who have been exposed or might become exposed to the type of tobacco product,
(b) exposure to the type of tobacco product can cause or contribute to disease, and
(c) during all or part of the period of the breach referred to in paragraph (a), the type of tobacco product, manufactured or promoted by the defendant manufacturer or the manufacturers related to the defendant manufacturer, was offered for sale in British Columbia.
(2) Subject to subsections (1) and (4), the court must presume that
(a) the population of insured persons who were exposed to a tobacco product, manufactured or promoted by the defendant manufacturer or the manufacturers related to the defendant manufacturer, would not have been exposed to the product but for the breach referred to in subsection (1) (a), and
(b) the exposure described in paragraph (a) caused or contributed to disease in a portion of the population described in paragraph (a).
(3) If the presumptions under subsection (2) (a) and (b) apply,
(a) the court must determine the aggregate cost of health care benefits that have been, or will be, provided after the date of the breach referred to in subsection (1) (a) resulting from disease caused or contributed to by exposure to a type of tobacco product, and
(b) each defendant manufacturer to which the presumptions apply is liable for the proportion of the aggregate cost referred to in paragraph (a) equal to its market share in that type of tobacco product.
(4) The amount of a defendant manufacturer’s liability assessed under subsection (3)(b) may be reduced, or the proportions of liability assessed under subsection (3) (b) readjusted amongst the defendant manufacturers, to the extent that a defendant manufacturer proves, on a balance of probabilities, that the breach referred to in subsection (1) (a) did not cause or contribute to the exposure referred to in subsection (2) (a) or to the disease referred to in subsection (2) (b).
13.2 Despite section 13.1, if the government establishes that 2 or more defendant manufacturers committed a tobacco related wrong in concert, the liability of those defendant manufacturers is joint and several.
14 Statistical information and information derived from epidemiological, sociological and other relevant studies, including information derived from sampling, is admissible as evidence for the purposes of establishing causation and quantifying damages or the cost of health care benefits respecting a tobacco related wrong in an action brought
(a) by or on behalf of an insured person in the person’s own name or as a member of a class of persons under the Class Proceedings Act , or
(b) by the government under section 13.
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, or 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 .
16 (1) This section does not apply to an action under section 13 for the recovery of the cost of health care benefits on an aggregate basis.
(2) If a plaintiff is unable to establish which defendant manufacturer caused or contributed to the exposure described in paragraph (b) and, as a result of a breach of a common law, equitable or statutory duty or obligation,
(a) one or more defendant manufacturers causes or contributes to a risk of disease by exposing persons to a type of tobacco product, and
(b) the plaintiff has been exposed to the type of tobacco product referred to in paragraph (a) and suffers disease as a result of the exposure,
the court may find each defendant manufacturer that caused or contributed to the risk of disease liable for a proportion of the damages or cost of health care benefits incurred equal to the proportion of its contribution to that risk of disease.
(3) The court may consider the following in apportioning liability under subsection(2):
(a) the length of time a defendant manufacturer or the manufacturers related to the defendant manufacturer engaged in the conduct that caused or contributed to the risk of disease;
(b) the market share the defendant manufacturer had in the type of tobacco product that caused or contributed to the risk of disease;
(c) the degree of toxicity of any toxic substance in the type of tobacco product manufactured or promoted by a defendant manufacturer or the manufacturers related to the defendant manufacturer;
(d) the amount spent by a defendant or the manufacturers related to the defendant manufacturer on promoting the type of tobacco product that caused or contributed to the risk of disease;
(e) the degree to which a 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 a defendant manufacturer or the manufacturers related to the defendant manufacturer conducted tests and studies to determine the risk of disease resulting from exposure to the type of tobacco product;
(g) the extent to which a defendant manufacturer or the manufacturers related to the defendant manufacturer assumed a leadership role in manufacturing or promoting the type of tobacco product;
(h) the efforts a defendant manufacturer or the manufacturers related to the defendant manufacturer made to warn the public about the risk of disease resulting from exposure to the type of tobacco product;
(i) the extent to which a defendant manufacturer or the manufacturers related to the defendant manufacturer continued manufacture or promotion of the type of tobacco product after it knew or ought to have known of the risk of disease resulting from exposure to the type of tobacco product;
(j) affirmative steps that a defendant manufacturer or the manufacturers related to the defendant manufacturer took to reduce the risk of disease to the public;
(k) other considerations considered relevant by the court.
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 for the same tobacco related wrong are jointly and severally liable for all the damages or the cost of health care benefits suffered as a result of that wrong.
17.1 (1) A court must consider all related manufacturers
(a) to be one manufacturer for the purposes of establishing a tobacco related wrong, and
(b) to be jointly and severally liable for the tobacco related wrongs committed by any of the related manufacturers.
(2) A manufacturer that has purchased, leased or otherwise acquired any tobacco related part of a business of another manufacturer is jointly and severally liable with the other manufacturer for the tobacco related wrongs committed by that other manufacturer in the course of that business.
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 or the cost of health care benefits 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 or the cost of health care benefits 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 or the cost of health care benefits under section 17.
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:
(a) designating a health care benefit for the purposes of section 1;
(b) prescribing a form of tobacco for the purposes of paragraph (i) of the definition of "type of tobacco product" in section 1.
20 (1) This Act comes into force by regulation of the Lieutenant Governor in Council.
(2) When brought into force under subsection (1), a provision of this Act has the retroactive effect necessary to give the provision full effect for all purposes including allowing an action to be brought under section 13 arising from a tobacco related wrong, whenever it occurred.