CHAPTER T-7.5 = - Tobacco Damages and Health Care Costs Recovery Act

Definitions=20 and interpretation.................................................................= ....................................=20 1(1)

Exclusion=20 from definition of "manufacturer".................................................................= ............=20 1(2)

Affiliates.................................................................= ................................................................=20 1(3)-(5)

Determining=20 market share.................................................................= ..........................................=20 1(6)

Direct=20 action by the Province.................................................................= ..........................................=20 2

Recovery=20 of cost of health care benefits.................................................................= ........................=20 3

Joint=20 and several liability.................................................................= .................................................=20 4

Population=20 based evidence.................................................................= ...............................................=20 5

Limitation=20 periods.................................................................= ............................................................=20 6

Liability=20 based on risk contribution.................................................................= ................................=20 7

Apportionment=20 of liability in tobacco-related wrongs.................................................................= ..=20 8

Regulations.................................................................= ........................................................................ = 9

Retroactive=20 effect.................................................................= ...........................................................=20 10

Commencement.................................................................= ..............................................................=20 11

Her=20 Majesty, by and with the advice and consent of the Legislative Assembly = of New=20 Brunswick, enacts as follows:

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

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

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

(b) =20 entitled services as defined under the = Medical Services Payment Act,

(c) =20 payments made by Her Majesty in right of the Province under the=20 Ambulance Services Act, Prescription Drug Payment Act, = Health=20 Services Act and Family Services Act, and

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

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

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

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

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

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

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

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

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

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

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

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

"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. (promouvoir ou=20 promotion).

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

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

(a) =20 a tort committed in the Province by a=20 manufacturer that causes or contributes to tobacco-related disease, = or

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

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

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

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

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

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

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

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

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

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

1(4) &nbs= p;=20 For the purposes of paragraph (3)(b), a=20 person is deemed to be an affiliate of another person if the person

(a) =20 is a corporation and the other person, = or a=20 group of persons not dealing with each other at arm's length of which = the other=20 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=20 directors of the corporation and the votes carried by the shares are = sufficient,=20 if exercised, to elect a director of the corporation, or

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

(b) =20 is a partnership, trust or joint venture and the other person, or = a group=20 of persons not dealing with each other at arm's length of which the = other person=20 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=20 least 50% of the assets on dissolution, winding up or termination of the = partnership, trust or joint venture.

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

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

dms = =3D

100%

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 = that=20 defendant to the date of trial;

dm=20 =3D the quantity of the type of tobacco product manufactured or promoted = by the=20 defendant that is sold within the Province from the date of the earliest = tobacco-related wrong committed by that defendant to the date of = trial;

MM=20 =3D the quantity of the type of tobacco product manufactured or promoted = by all=20 manufacturers that is sold within the Province from the date of the = earliest=20 tobacco-related wrong committed by the defendant to the date of = trial.

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

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

2(3) &nbs= p;=20 In an action under subsection (1), Her = Majesty=20 in right of the Province may recover the cost of health care benefits = whether or=20 not there has been any recovery by other persons who have suffered = damage caused=20 or contributed to by the tobacco-related wrong committed by the = defendant.

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

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

2(5) &nbs= p;=20 Where Her Majesty in right of the Province seeks in an action = under=20 subsection (1) to recover the cost of health care benefits on an = aggregate=20 basis,

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

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

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

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

(d) =20 notwithstanding 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 shall = include=20 directions concerning the nature, level of detail and type of = information to be=20 disclosed, and

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

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

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

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

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

3(2) &nbs= p;=20 Subject to subsections (1) and (4), the court shall presume = that

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

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

3(3) &nbs= p;=20 Where the presumptions under subsections (2)(a) and = (b)=20 apply,

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

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

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

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

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

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

4(2) &nbs= p;=20 For purposes of an action under subsection 2(1), two 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 subsection 1(1) if

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

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

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

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

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

6(1) &nbs= p;=20 No action that is commenced within two years after the coming = into force=20 of this section by

(c) =20 an executor or administrator of the estate of a deceased person = on behalf=20 of the husband, wife, parent, child, brother or sister, as defined in = the=20 Fatal Accidents Act, of the deceased person,

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

6(2) &nbs= p;=20 Any action described in subsection (1) for damages alleged to = have been=20 caused 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 by the Fatal Accidents Act or by a limitation period = under any=20 other Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8(4) &nbs= p;=20 In 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 consideration listed in paragraphs 7(3)(a) to = (k).

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

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

(d) =20 respecting any other matter or thing that the Lieutenant-Governor = in=20 Council considers necessary or advisable to carry out effectively the = intent and=20 purpose of this Act.

10 &nbs= p; =20 When brought into force under section 11, a provision of this = Act has=20 the retroactive effect necessary to give the provision full effect for = all=20 purposes, including allowing an action to be brought under section 2(1) = arising=20 from a tobacco-related wrong, whenever the tobacco-related wrong = occurred.

11 &nbs= p; =20 This Act or any provision of this Act comes into force on a = day or=20 days to be fixed by proclamation.