Tobacco Damages and Health Care Costs Recovery = Act


Copyright (c) Queen's=20 Printer, Victoria, British Columbia, Canada	IMPORTANT=20 INFORMATION

Tobacco Damages and Health Care Costs Recovery Act

[SBC 2000] CHAPTER 30

Assented to July 6, 2000

Contents
Section
	1&n= bsp;	Def= initions=20 and interpretation
	2&n= bsp;	Dir= ect=20 action by government
	3&n= bsp;	Rec= overy=20 of cost of health care benefits on aggregate basis
	4&n= bsp;	Joi= nt=20 and several liability in an action under section 2 = (1)
	5&n= bsp;	Pop= ulation=20 based evidence to establish causation and quantify damages or=20 cost
	6&n= bsp;	Lim= itation=20 periods
	7&n= bsp;	Lia= bility=20 based on risk contribution
	8&n= bsp;	App= ortionment=20 of liability in tobacco related wrongs
	9&n= bsp;	Reg= ulations
	10=	Re= troactive=20 effect
	11=	Sp= ent
	12=	Co= mmencement

Definitions and interpretation

1 (1) In this = Act:

"cost of health care = benefits" means the sum=20 of

(a) the present value of the total expenditure by = the=20 government for health care benefits provided for insured persons = resulting from=20 tobacco related disease or the risk of tobacco related disease, and

(b) the present value of the estimated total = expenditure by=20 the government for health care benefits that could reasonably be = expected will=20 be provided for those insured persons resulting from tobacco related = disease or=20 the risk of tobacco related disease;

"disease" includes general = deterioration of=20 health;

"exposure" means any contact with, = or=20 ingestion, inhalation or assimilation of, a tobacco product, including = any smoke=20 or other by-product of the use, consumption or combustion of a tobacco = product;=20

"health care benefits" means

(a) benefits as defined under the Hospital = Insurance=20 Act,

(b) benefits as defined under the Medicare = Protection=20 Act,

(d) other expenditures, made directly or through = one or more=20 agents or other intermediate bodies, by the government for programs, = services,=20 benefits or similar matters associated with disease;

"insured person" means

(a) a person, including a deceased person, for whom = health=20 care benefits have been provided, or

(b) a person for whom health care benefits could = reasonably=20 be expected will be provided;

"joint venture" means an = association of 2 or=20 more persons, if

(a) the relationship among the persons does not = constitute a=20 corporation, a partnership or a trust, and

(b) the persons each have an undivided interest in = assets of=20 the association;

"manufacture" includes, for a = tobacco=20 product, the production, assembly or packaging of the tobacco product; =

"manufacturer" means a person who=20 manufactures or has manufactured a tobacco product and includes a person = who=20 currently or in the past

(a) causes, directly or indirectly, through = arrangements with=20 contractors, subcontractors, licensees, franchisees or others, the = manufacture=20 of a tobacco product,

(b) for any fiscal year of the person, derives at = least 10%=20 of revenues, determined on a consolidated basis in accordance with = generally=20 accepted accounting principles in Canada, from the manufacture or = promotion of=20 tobacco products by that person or by other persons,

(c) engages in, or causes, directly or indirectly, = other=20 persons to engage in the promotion of a tobacco product, or

(d) is a trade association primarily engaged in

(i) the advancement of the interests of = manufacturers,=20

(ii) the promotion of a tobacco product, or =

(iii) causing, directly or indirectly, other = persons to=20 engage in the promotion of a tobacco product;

"person" includes a trust, joint = venture or=20 trade association;

"promote" or = "promotion"=20 includes, for a tobacco product, the marketing, distribution or sale of = the=20 tobacco product and research with respect to the tobacco product;

"tobacco product" means tobacco and = any=20 product that includes tobacco;

"tobacco related disease" means = disease=20 caused or contributed to by exposure to a tobacco product;

"tobacco related wrong" means,

(a) a tort committed in British Columbia by a = manufacturer=20 which causes or contributes to tobacco related disease, or

(b) in an action under section 2 (1), a breach of a = common=20 law, equitable or statutory duty or obligation owed by a manufacturer to = persons=20 in British Columbia who have been exposed or might become exposed to a = tobacco=20 product;

"type of tobacco product" means one = or a=20 combination of the following tobacco products:

(a) cigarettes;

(b) loose tobacco intended for incorporation into=20 cigarettes;

(d) cigarillos;

(e) pipe tobacco;

(f) chewing tobacco;

(g) nasal snuff;

(h) oral snuff;

(i) a prescribed form of tobacco.

(2) The definition of "manufacturer" in subsection = (1) does=20 not include

(a) an individual,

(b) a person who

(i) is a manufacturer only because they are a = wholesaler=20 or retailer of tobacco products, and

(ii) is not related to

(A) a person who manufactures a tobacco product, = or

(B) a person described in paragraph (a) of the = definition=20 of "manufacturer", or

(i) is a manufacturer only because paragraph = (b) or (c)=20 of the definition of "manufacturer" applies to the person, and

(ii) is not related to

(A) a person who manufactures a tobacco product, = or

(B) a person described in paragraphs (a) or (d) = of the=20 definition of "manufacturer".

(3) For the purposes of subsection (2), a person is = related=20 to another person if, directly or indirectly, the person is

(a) an affiliate, as defined in section 1 of the = Business=20 Corporations Act, of the other person, or

(b) an affiliate of the other person or an = affiliate of an=20 affiliate of the other person.

(4) For the purposes of subsection (3) (b), a = person is=20 deemed to be an affiliate of another person if the person

(a) is a corporation and the other person, or a = group of=20 persons not dealing with each other at arm's length of which the other = person is=20 a member, owns a beneficial interest in shares of the corporation

(i) carrying at least 50% of the votes for the = election=20 of directors of the corporation and the votes carried by the shares are=20 sufficient, if exercised, to elect a director of the corporation, or =

(ii) having a fair market value, including a = premium for=20 control if applicable, of at least 50% of the fair market value of all = the=20 issued and outstanding shares of the corporation, or

(b) is a partnership, trust or joint venture and = the other=20 person, or a group of persons not dealing with each other at arm's = length of=20 which the other person is a member, has an ownership interest in the = assets of=20 that person that entitles the other person or group to receive at least = 50% of=20 the profits or at least 50% of the assets on dissolution, winding up or=20 termination of the partnership, trust or joint venture.

(5) For the purposes of subsection (3) (b), a = person is=20 deemed to be an affiliate of another person if the other person, or a = group of=20 persons not dealing with each other at arm's length of which the other = person is=20 a member, has any direct or indirect influence that, if exercised, would = result=20 in control in fact of that person except if the other person deals at = arm's=20 length with that person and derives influence solely as a lender.

(6) For the purposes of determining the market = share of a=20 defendant for a type of tobacco product sold in British Columbia, the = court must=20 calculate the defendant's market share for the type of tobacco product = by the=20 following formula:

dms =3D	dm	x = 100%

MM

where
dms	=3D	the defendant's market share for the type of = tobacco=20 product from the date of the earliest tobacco related wrong = committed by=20 that defendant to the date of trial;
dm	=3D	the quantity of the type of tobacco product = manufactured or=20 promoted by the defendant that is sold within British Columbia = from the=20 date of the earliest tobacco related wrong committed by that = defendant to=20 the date of trial;
MM	=3D	the quantity of the type of tobacco product = manufactured or=20 promoted by all manufacturers that is sold within British Columbia = from=20 the date of the earliest tobacco related wrong committed by the = defendant=20 to the date of trial.

Direct action by government

2 (1) The = government=20 has a direct and distinct action against a manufacturer to recover the = cost of=20 health care benefits caused or contributed to by a tobacco related = wrong.

(2) An action under subsection (1) is brought by = the=20 government in its own right and not on the basis of a subrogated = claim.

(3) In an action under subsection (1), the = government may=20 recover the cost of health care benefits whether or not there has been = any=20 recovery by other persons who have suffered damage caused or contributed = to by=20 the tobacco related wrong committed by the defendant.

(4) In an action under subsection (1), the = government may=20 recover the cost of health care benefits

(a) for particular individual insured persons, = or

(b) on an aggregate basis, for a population of = insured=20 persons as a result of exposure to a type of tobacco product.

(5) If the government seeks in an action under = subsection (1)=20 to recover the cost of health care benefits on an aggregate basis,

(a) it is not necessary

(i) to identify particular individual insured = persons,=20

(ii) to prove the cause of tobacco related = disease in any=20 particular individual insured person, or

(iii) to prove the cost of health care benefits = for any=20 particular individual insured person,

(b) the health care records and documents of = particular=20 individual insured persons or the documents relating to the provision of = health=20 care benefits for particular individual insured persons are not = compellable=20 except as provided under a rule of law, practice or procedure that = requires the=20 production of documents relied on by an expert witness,

(c) a person is not compellable to answer questions = with=20 respect to the health of, or the provision of health care benefits for,=20 particular individual insured persons,

(d) despite paragraphs (b) and (c), on application = by a=20 defendant, the court may order discovery of a statistically meaningful = sample of=20 the documents referred to in paragraph (b) and the order must include = directions=20 concerning the nature, level of detail and type of information to be = disclosed,=20 and

(e) if an order is made under paragraph (d), the = identity of=20 particular individual insured persons must not be disclosed and all = identifiers=20 that disclose or may be used to trace the names or identities of any = particular=20 individual insured persons must be deleted from any documents before the = documents are disclosed.

Recovery of cost of health care benefits on = aggregate=20 basis

3 (1) In an = action=20 under section 2 (1) for the recovery of the cost of health care benefits = on an=20 aggregate basis, subsection (2) applies if the government proves, on a = balance=20 of probabilities, that, in respect of a type of tobacco product,

(a) the defendant breached a common law, equitable = or=20 statutory duty or obligation owed to persons in British Columbia who = have been=20 exposed or might become exposed to the type of tobacco product,

(b) exposure to the type of tobacco product can = cause or=20 contribute to disease, and

(c) during all or part of the period of the breach = referred=20 to in paragraph (a), the type of tobacco product, manufactured or = promoted by=20 the defendant, was offered for sale in British Columbia.

(2) Subject to subsections (1) and (4), the court = must=20 presume that

(a) the population of insured persons who were = exposed to the=20 type of tobacco product, manufactured or promoted by the defendant, = would not=20 have been exposed to the product but for the breach referred to in = subsection=20 (1) (a), and

(b) the exposure described in paragraph (a) caused = or=20 contributed to disease or the risk of disease in a portion of the = population=20 described in paragraph (a).

(3) If the presumptions under subsection (2) (a) = and (b)=20 apply,

(a) the court must determine on an aggregate basis = the cost=20 of health care benefits provided after the date of the breach referred = to in=20 subsection (1) (a) resulting from exposure to the type of tobacco = product, and=20

(b) each defendant to which the presumptions apply = is liable=20 for the proportion of the aggregate cost referred to in paragraph (a) = equal to=20 its market share in the type of tobacco product.

(4) The amount of a defendant's liability assessed = under=20 subsection (3) (b) may be reduced, or the proportions of liability = assessed=20 under subsection (3) (b) readjusted amongst the defendants, to the = extent that a=20 defendant proves, on a balance of probabilities, that the breach = referred to in=20 subsection (1) (a) did not cause or contribute to the exposure referred = to in=20 subsection (2) (a) or to the disease or risk of disease referred to in=20 subsection (2) (b).

Joint and several liability in an action = under section=20 2 (1)

4 (1) Two or = more=20 defendants in an action under section 2 (1) are jointly and severally = liable for=20 the cost of health care benefits if

(a) those defendants jointly breached a duty or = obligation=20 described in the definition of "tobacco related wrong" in section 1 (1), = and=20

(b) as a consequence of the breach described in = paragraph=20 (a), at least one of those defendants is held liable in the action under = section=20 2 (1) for the cost of those health care benefits.

(2) For purposes of an action under section 2 (1), = 2 or more=20 manufacturers, whether or not they are defendants in the action, are = deemed to=20 have jointly breached a duty or obligation described in the definition = of=20 "tobacco related wrong" in section 1 (1) if

(a) one or more of those manufacturers are held to = have=20 breached the duty or obligation, and

(b) at common law, in equity or under an enactment = those=20 manufacturers would be held

(i) to have conspired or acted in concert with = respect to=20 the breach,

(ii) to have acted in a principal and agent = relationship=20 with each other with respect to the breach, or

(iii) to be jointly or vicariously liable for = the breach=20 if damages would have been awarded to a person who suffered as a = consequence of=20 the breach.

Population based evidence to establish = causation and=20 quantify damages or cost

5 Statistical = information and=20 information derived from epidemiological, sociological and other = relevant=20 studies, including information derived from sampling, is admissible as = evidence=20 for the purposes of establishing causation and quantifying damages or = the cost=20 of health care benefits respecting a tobacco related wrong in an action = brought=20

(a) by or on behalf of a person in the person's own = name or=20 as a member of a class of persons under the Class Proceedings = Act, or=20

(b) by the government under section 2 = (1).

Limitation periods

6 (1) No = action that is=20 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=20 class of persons, or

(c) a personal representative of a deceased person = on behalf=20 of the spouse, parent or child, as defined in the Family = Compensation=20 Act, of the deceased person,

for damages, or the cost of health care benefits, alleged = to have=20 been caused or contributed to by a tobacco related wrong is barred under = the=20 Limitation Act.

(2) Any action described in subsection (1) for = damages=20 alleged to have been caused or contributed to by a tobacco related wrong = is=20 revived if the action was dismissed before the coming into force of this = section=20 merely because it was held by a court to be barred or extinguished by = the=20 Limitation Act.

Liability based on risk contribution

7 (1) This = section=20 applies to an action for damages, or the cost of health care benefits, = alleged=20 to have been caused or contributed to by a tobacco related wrong other = than an=20 action for the recovery of the cost of health care benefits on an = aggregate=20 basis.

(2) If a plaintiff is unable to establish which = defendant=20 caused or contributed to the exposure described in paragraph (b) and, as = a=20 result of a breach of a common law, equitable or statutory duty or = obligation,=20

(a) one or more defendants causes or contributes to = a risk of=20 disease by exposing persons to a type of tobacco product, and

(b) the plaintiff has been exposed to the type of = tobacco=20 product referred to in paragraph (a) and suffers disease as a result of = the=20 exposure,

the court may find each defendant that caused or = contributed to the=20 risk of disease liable for a proportion of the damages or cost of health = care=20 benefits incurred equal to the proportion of its contribution to that = risk of=20 disease.

(3) The court may consider the following in = apportioning=20 liability under subsection (2):

(a) the length of time a defendant engaged in the = conduct=20 that caused or contributed to the risk of disease;

(b) the market share the defendant had in the type = of tobacco=20 product that caused or contributed to the risk of disease;

(c) the degree of toxicity of any toxic substance = in the type=20 of tobacco product manufactured or promoted by a defendant;

(d) the amount spent by a defendant on promoting = the type of=20 tobacco product that caused or contributed to the risk of disease;

(e) the degree to which a defendant collaborated or = acted in=20 concert with other manufacturers in any conduct that caused, contributed = to or=20 aggravated the risk of disease;

(f) the extent to which a defendant conducted tests = and=20 studies to determine the risk of disease resulting from exposure to the = type of=20 tobacco product;

(g) the extent to which a defendant assumed a = leadership role=20 in manufacturing the type of tobacco product;

(h) the efforts a defendant made to warn the public = about the=20 risk of disease resulting from exposure to the type of tobacco = product;

(i) the extent to which a defendant continued = manufacture or=20 promotion of the type of tobacco product after it knew or ought to have = known of=20 the risk of disease resulting from exposure to the type of tobacco = product;

(j) affirmative steps that a defendant took to = reduce the=20 risk of disease to the public;

(k) other considerations considered relevant by the = court.

Apportionment of liability in tobacco related = wrongs=20

8 (1) This = section does=20 not apply to a defendant in respect of whom the court has made a finding = of=20 liability under section 7.

(2) A defendant who is found liable for a tobacco = related=20 wrong may commence, against one or more of the defendants found liable = for that=20 wrong in the same action, an action or proceeding for contribution = toward=20 payment of the damages or the cost of health care benefits caused or = contributed=20 to by that wrong.

(3) Subsection (2) applies whether or not the = defendant=20 commencing an action or proceeding under that subsection has paid all or = any of=20 the damages or the cost of health care benefits caused or contributed to = by the=20 tobacco related wrong.

(4) In an action or proceeding described in = subsection (2),=20 the court may apportion liability and order contribution among each of = the=20 defendants in accordance with the considerations listed in section 7 (3) = (a) to=20 (k).

Regulations

9 (1) The = Lieutenant=20 Governor in Council may make regulations referred to in section 41 of = the=20 Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant = Governor=20 in Council may make regulations prescribing a form of tobacco for the = purposes=20 of paragraph (i) of the definition of "type of tobacco product" in = section 1=20 (1).

Retroactive effect

10 When brought = into force=20 under section 12, a provision of this Act has the retroactive effect = necessary=20 to give the provision full effect for all purposes including allowing an = action=20 to be brought under section 2 (1) arising from a tobacco related wrong, = whenever=20 the tobacco related wrong occurred.

Spent

11 [Repeal. = Spent.=20 2000-30-11.]

Commencement

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

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FONT-SIZE: 1em } #explan { BORDER-RIGHT: #000000 1px solid; PADDING-RIGHT: 20px; BORDER-TOP: = #000000 1px solid; PADDING-LEFT: 20px; PADDING-BOTTOM: 20px; MARGIN: 4em = auto 1em; BORDER-LEFT: #000000 1px solid; WIDTH: 570px; LINE-HEIGHT: = 1.3em; PADDING-TOP: 20px; BORDER-BOTTOM: #000000 1px solid; FONT-FAMILY: = Times, "Times New Roman", serif; TEXT-ALIGN: center } #explan H4 { PADDING-RIGHT: 0px; PADDING-LEFT: 0px; FONT-WEIGHT: bold; FONT-SIZE: = 1.1em; PADDING-BOTTOM: 6px; MARGIN: 0px; PADDING-TOP: 0px; FONT-FAMILY: = Times, "Times New Roman", serif; TEXT-ALIGN: center } #explan P { MARGIN-TOP: 0px; FONT-SIZE: 1em; MARGIN-BOTTOM: 0px; PADDING-BOTTOM: = 0px; LINE-HEIGHT: 1.3em; PADDING-TOP: 8px; TEXT-ALIGN: left } #explan UL { PADDING-RIGHT: 0px; PADDING-LEFT: 0px; PADDING-BOTTOM: 0px; MARGIN: 0px = 0px 0px 30px; PADDING-TOP: 0px; TEXT-ALIGN: left } #explan LI { MARGIN-TOP: 0px; FONT-SIZE: 1em; MARGIN-BOTTOM: 0px; PADDING-BOTTOM: = 0px; PADDING-TOP: 2px; TEXT-ALIGN: left } #explan TABLE { PADDING-RIGHT: 0px; PADDING-LEFT: 0px; PADDING-BOTTOM: 0px; MARGIN: = 0px; PADDING-TOP: 0px } #explan TABLE.abbrev { MARGIN-TOP: 1px; FONT-SIZE: 1em; MARGIN-BOTTOM: 1px; TEXT-ALIGN: left } #explan TD.abbrevtext { PADDING-RIGHT: 0px; MARGIN-TOP: 0px; PADDING-LEFT: 0px; FONT-SIZE: 1em; = MARGIN-BOTTOM: 2px; PADDING-BOTTOM: 0px; PADDING-TOP: 0px; TEXT-ALIGN: = left } ------=_NextPart_000_0049_01C7D421.EC2C3D40--