The Tobacco Damages and Health Care Costs Recovery = Act

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document

This is not an official version.
For an official = print=20 version, contact Statutory = Publications.

S.M. 2006, c. 18

Bill 27, 4^th Session, 38^th=20 Legislature

Table of=20 Contents

(Assented to June 13, 2006)=20

HER MAJESTY, by and with the advice and consent of the Legislative = Assembly=20 of Manitoba, enacts as follows:=20

Definitions=20

1(1)&= nbsp; The=20 following definitions apply in this Act.=20

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

(a) the present value of the total expenditure by = Her Majesty=20 in right of Manitoba for health care benefits provided for insured = persons=20 resulting from tobacco-related disease or the risk of tobacco-related = disease;=20 and=20

(b) the present value of the estimated total = expenditure by=20 Her Majesty in right of Manitoba for health care benefits that could = reasonably=20 be expected will be provided for those insured persons resulting from=20 tobacco-related disease or the risk of tobacco-related disease. = (=AB co=FBt des=20 services de soins de sant=E9 =BB)=20

"disease" includes general deterioration of = health.=20 (=AB maladie =BB)=20

"exposure" means any contact with, or ingestion, = inhalation=20 or assimilation of, a tobacco product, including any smoke or other = by-product=20 of the use, consumption or combustion of a tobacco product.=20 (=AB exposition =BB)=20

"health care benefits" means=20

(a) benefits, hospital services, medical services, = other=20 health services and out-patient services, as those terms are defined in = The=20 Health Services Insurance Act;=20

(b) goods and services=20

provided in a personal care home that are set out as = personal=20 care services in the regulations under The Health Services Insurance = Act;=20

(d) other expenditures, made directly or through = one or more=20 agents or other intermediate bodies, by Her Majesty in right of Manitoba = for=20 programs, services, benefits or similar matters associated with disease. = (=AB services de soins de sant=E9 =BB)=20

"insured person" means=20

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

(b) a person for whom health care benefits could = reasonably=20 be expected will be provided. (=AB assur=E9 =BB)=20

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

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

(b) the persons each have an undivided interest in = assets of=20 the association. (=AB coentreprise =BB)=20

"manufacture" includes, for a tobacco product, = the=20 production, assembly or packaging of the tobacco product.=20 (=AB fabrication =BB)=20

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

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

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

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

(d) is a trade association primarily engaged in=20

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

(ii) the promotion of a tobacco product, or=20

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

"person" includes a partnership, trust, joint = venture or=20 trade association. (=AB personne =BB)=20

"promote" or "promotion" includes, for a = tobacco=20 product, the marketing, distribution or sale of the tobacco product and = research=20 with respect to the tobacco product. (=AB promotion =BB ou=20 =AB promouvoir =BB)=20

"tobacco product" means tobacco and any product = that=20 includes tobacco. (=AB produit du tabac =BB)=20

"tobacco-related disease" means disease caused or = contributed to by exposure to a tobacco product. (=AB maladie = li=E9e au=20 tabac =BB)=20

"tobacco-related wrong" means=20

(a) a tort committed in Manitoba by a manufacturer, = which=20 causes or contributes to tobacco-related disease; or=20

(b) in an action under subsection 2(1), a = breach of a=20 common law, equitable or statutory duty or obligation owed by a = manufacturer to=20 persons in Manitoba who have been exposed or might become exposed to a = tobacco=20 product. (=AB faute d'un fabricant =BB)=20

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

(a) cigarettes;=20

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

(d) cigarillos;=20

(e) pipe tobacco;=20

(f) chewing tobacco;=20

(g) nasal snuff;=20

(h) oral snuff;=20

(i) a prescribed form of tobacco. (=AB type de = produit du=20 tabac =BB)=20

Interpretation of "manufacturer"=20

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

(a) an individual;=20

(b) a person who=20

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

(ii) is not related to=20

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

(B) a person described in clause (a) of the = definition=20 "manufacturer"; or=20

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

(ii) is not related to=20

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

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

Interpretation of "related"=20

1(3) For=20 the purposes of subsection (2), a person is related to another = person if,=20 directly or indirectly, the person is=20

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

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

Deemed affiliate of corporation, partnership, = trust or joint=20 venture=20

1(4) For=20 the purposes of clause (3)(b), a person is deemed to be an = affiliate of=20 another person if the person=20

(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=20

(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=20

(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=20

(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%=20 of the profits or at least 50% of the assets on dissolution, = winding up or=20 termination of the partnership, trust or joint venture.=20

Deemed affiliate: controlling influence=20

1(5) For=20 the purposes of clause (3)(b), a person is deemed to be an = affiliate of=20 another person if the other person, or a group of persons not dealing = with each=20 other at arm's length of which the other person is a member, has any = direct or=20 indirect influence that, if exercised, would result in control in fact = of that=20 person except if the other person deals at arm's length with that person = and=20 derives influence solely as a lender.=20

Determining market share=20

1(6) For=20 the purposes of determining the market share of a defendant for a type = of=20 tobacco product sold in Manitoba, the court must calculate the = defendant's=20 market share for the type of tobacco product by the following formula:=20

dms =3D (dm/MM) =D7 100%=20

where dms =3D=20

the defendant's market share for the type of tobacco = product=20 from the date of the earliest tobacco-related wrong committed by that = defendant=20 to the date of trial;=20

dm =3D=20

the quantity of the type of tobacco product = manufactured or=20 promoted by the defendant that is sold within Manitoba from the date of = the=20 earliest tobacco-related wrong committed by that defendant to the date = of trial;=20

MM =3D

the quantity of the type of tobacco product = manufactured or=20 promoted by all manufacturers that is sold within Manitoba from the date = of the=20 earliest tobacco-related wrong committed by the defendant to the date of = trial.=20

Direct action by the province=20

2(1)&= nbsp; Her=20 Majesty in right of Manitoba has a direct and distinct action against a=20 manufacturer to recover the cost of health care benefits caused or = contributed=20 to by a tobacco-related wrong.=20

Action is in province's own right=20

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

Health costs recoverable even if other persons = have=20 recovered from defendant=20

2(3) In=20 an action under subsection (1), Her Majesty in right of Manitoba = 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.=20

Province may recover individually or on aggregate = basis=20

2(4) In=20 an action under subsection (1), Her Majesty in right of Manitoba = may=20 recover the cost of health care benefits=20

(a) for particular individual insured persons; or=20

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

Procedures re aggregate action=20

2(5) If=20 Her Majesty in right of Manitoba seeks in an action under = subsection (1) to=20 recover the cost of health care benefits on an aggregate basis,=20

(a) it is not necessary=20

(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=20

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

(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;=20

(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;=20

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

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

Recovery of the cost of health care benefits=20

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

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

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

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

Presumptions re exposure=20

3(2) Subject=20 to subsections (1) and (4), the court must presume that=20

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

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

Determining aggregate costs and defendants' = portions=20

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

(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 clause (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 clause (a) = equal to=20 its market share in the type of tobacco product.=20

Reduction or readjustment of defendants' = portions=20

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

Joint and several liability=20

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

(a) those defendants jointly breached a duty or = obligation=20 described in the definition "tobacco-related wrong" in = subsection 1(1); and=20

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

Deemed joint breach=20

4(2) For=20 purposes of an action under subsection 2(1), two or more = manufacturers,=20 whether or not they are defendants in the action, are deemed to have = jointly=20 breached a duty or obligation described in the definition = "tobacco-related=20 wrong" in subsection 1(1) if=20

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

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

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

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

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

Population-based evidence=20

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

(a) by Her Majesty in right of Manitoba under=20 subsection 2(1); or=20

(b) 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.=20

Definitions for section 6=20

6(1)&= nbsp; In=20 this section, "child", "common-law partner", = "deceased",=20 "parent" and "support recipient" have the same meaning as = in=20 section 1 of The Fatal Accidents Act.=20

Limitation periods=20

6(2) No=20 action that is commenced within two years after the coming into force of = this=20 section by=20

(a) Her Majesty in right of Manitoba;=20

(b) a person, on his or her own behalf or on behalf = of a=20 class of persons;=20

(c) an executor or administrator of the estate of a = deceased=20 person for the benefit of the husband, wife, common-law partner, support = recipient, parent, child, brother or sister, or any of them, of the = deceased=20 person; or=20

(d) a person entitled to bring an action under=20 subsection 5(1) of The Fatal Accidents Act;=20

for damages, or the cost of health care benefits, alleged to have = been caused=20 or contributed to by a tobacco-related wrong is barred under The = Limitation=20 of Actions Act or The Fatal Accidents Act or by a = limitation=20 period under any other Act.=20

Revival of action=20

6(3) Any=20 action described in subsection (2) for damages alleged to have been = caused=20 or contributed to by a tobacco-related wrong is revived if the action = was=20 dismissed before the coming into force of this section merely because it = was=20 held by a court to be barred or extinguished by The Limitation of = Actions=20 Act or The Fatal Accidents Act or by a limitation period = under any=20 other Act.=20

Liability based on risk contribution=20

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

Plaintiff unable to establish who caused = exposure=20

7(2) If=20 a plaintiff is unable to establish which defendant caused or contributed = to the=20 exposure described in clause (b) and, as a result of a breach of a = common=20 law, equitable or statutory duty or obligation,=20

(a) one or more defendants caused or contributed to = a risk of=20 disease by exposing persons to a type of tobacco product; and=20

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

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

Apportioning liability: factors =

7(3) The=20 court may consider the following in apportioning liability under=20 subsection (2):=20

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

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

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

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

(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;=20

(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;=20

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

(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;=20

(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;=20

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

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

Apportionment of liability in tobacco-related = wrongs=20

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

Action for contribution=20

8(2) A=20 defendant who is found liable for a tobacco-related wrong may commence, = against=20 one or more of the defendants found liable for that wrong in the same = action, an=20 action or proceeding for contribution toward payment of the damages or = the cost=20 of health care benefits caused or contributed to by that wrong.=20

Action may be commenced even if damages or costs = not paid=20

8(3) Subsection (2)=20 applies whether or not the defendant commencing an action or proceeding = under=20 that subsection has paid all or any of the damages or the cost of health = care=20 benefits caused or contributed to by the tobacco-related wrong.=20

Apportioning liability and contributions: = factors=20

8(4) In=20 an action or proceeding described in subsection (2), the court may=20 apportion liability and order contribution among each of the defendants = in=20 accordance with the considerations listed in clauses 7(3)(a) to = (k).=20

Regulations=20

9&nbs= p; The=20 Lieutenant Governor in Council may make regulations=20

(a) prescribing a form of tobacco for the purposes = of the=20 definition "type of tobacco product" in subsection 1(1);=20

(b) providing for administrative and procedural = matters for=20 which no express, or only partial, provision has been made;=20

(d) respecting any matter the Lieutenant Governor = in Council=20 considers necessary or advisable to carry out the purposes of this Act.=20

Retroactive effect=20

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

C.C.S.M. reference=20

11&n= bsp; This=20 Act may be referred to as chapter T70 of the Continuing Consolidation = of the=20 Statutes of Manitoba.=20

Coming into force=20

12&n= bsp; This=20 Act comes into force on a day to be fixed by proclamation. =