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SNL2001 CHAPTER T-4.2

TOBACCO HEALTH CARE COSTS
RECOVERY ACT

Amended:

2005 c50 s1; 2016 cM-5.01 s62

CHAPTER T-4.2

AN ACT TO PROVIDE FOR THE RECOVERY OF TOBACCO RELATED HEALTH CARE COSTS

(Assented to May 24, 2001 )

Analysis


†††††††
1. Short title

†††††††
2. Definitions

†††††††
3. Interpretation

†††††††
4. Direct action by Crown

†††††††
5. Recovery on aggregate basis

†††††††
6. Joint and individual liability

†††††††
7. Population based evidence

†††††††
8. Limitation periods

†††††††
9. Apportionment of liability

†††††
10. Regulations

†††††
11. Commencement


Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

††††††† 1. This Act may be cited as the Tobacco Health Care Costs Recovery Act.

2001 cT-4.2 s1

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Definitions

††††††† 2. In this Act

†††††††††††† (a) "cost of health care services" means the sum of

††††††††††††††††††††† (i) the present value of the health care services provided to an insured person in relation to tobacco related disease or the risk of tobacco related disease, and

†††††††††††††††††††† (ii) the present value of the estimated health care services that could reasonably be expected will be provided to an insured person in relation to tobacco related disease or the risk of tobacco related disease;

†††††††††††† (b) "disease" includes general deterioration of health;

†††††††††††† (c) "exposure" means contact with, or ingestion, inhalation or assimilation of, a tobacco product, including smoke or another by-product of the use, consumption or combustion of a tobacco product;

†††††††††††† (d) "health care services" means

††††††††††††††††††††† (i) insured services as defined under the Hospital Insurance Regulations , and

†††††††††††††††††††† (ii) insured services as defined under the Medical Care and Hospital Insurance Act , and

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

†††††††††††† (e) "insured person" means

††††††††††††††††††††† (i) a person, including a deceased person, who was provided with health care services, or

†††††††††††††††††††† (ii) a person who could reasonably be expected to be provided with health care services;

†††††††††††† (f) "joint venture" means an association of 2 or more persons, where

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

†††††††††††††††††††† (ii) the persons each have an undivided interest in assets of the association;

†††††††††††† (g) "manufacture" includes, for a tobacco product, the production, assembly or packaging of the tobacco product;

†††††††††††† (h) "manufacturer" means a person who manufactures or has manufactured a tobacco product and includes a person who currently or in the past

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

†††††††††††††††††††† (ii) for a fiscal year of the person, derives at least 10 per cent of revenues, determined on a consolidated basis in accordance with generally accepted accounting principles in Canada , from the manufacture or promotion of tobacco products,

††††††††††††††††††† (iii) engages in, or causes, directly or indirectly, other persons to engage in the promotion of a tobacco product, or

††††††††††††††††††† (iv) is a trade association primarily engaged in

††††††††††††††††††††††††††† (A) the advancement of the interests of manufacturers,

††††††††††††††††††††††††††† (B) the promotion of a tobacco product, or

††††††††††††††††††††††††††† (C) causing, directly or indirectly, other persons to engage in the promotion of a tobacco product,

but does not include

†††††††††††††††††††† (v) an individual,

††††††††††††††††††† (vi) a person who

††††††††††††††††††††††††††† (A) is a manufacturer only because they are a wholesaler or retailer of tobacco products, and

††††††††††††††††††††††††††† (B) is not related to

†††††††††††††††††††††††††††††††††††† (I) a person who manufactures a tobacco product, or

††††††††††††††††††††††††††††††††††† (II) a person described in subparagraph (i), or

†††††††††††††††††† (vii) a person who

††††††††††††††††††††††††††† (A) is a manufacturer only because subparagraph (ii) or (iii) applies to the person, and

††††††††††††††††††††††††††† (B) is not related to

†††††††††††††††††††††††††††††††††††† (I) a person who manufactures a tobacco product, or

††††††††††††††††††††††††††††††††††† (II) a person described in subparagraph (i) or (iv);

††††††††††††† (i) "person" includes a trust, joint venture or trade association;

††††††††††††† (j) "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;

†††††††††††† (k) "tobacco product" means tobacco and a product that includes tobacco;

††††††††††††† (l) "tobacco related disease" means a disease caused or contributed to by exposure to a tobacco product;

†††††††††† (m) "tobacco related wrong" means a breach of a common law, equitable or statutory duty or obligation owed by a manufacturer to persons in the province who have been exposed or might become exposed to a tobacco product; and

†††††††††††† (n) "type of tobacco product" means one or a combination of the following categories of tobacco products:

††††††††††††††††††††† (i) cigarettes,

†††††††††††††††††††† (ii) loose tobacco intended for incorporation into cigarettes,

††††††††††††††††††† (iii) cigars,

††††††††††††††††††† (iv) cigarillos,

†††††††††††††††††††† (v) pipe tobacco,

††††††††††††††††††† (vi) chewing tobacco,

†††††††††††††††††† (vii) nasal snuff,

††††††††††††††††† (viii) oral snuff, and

††††††††††††††††††† (ix) a prescribed form of tobacco.

2001 cT-4.2 s2; 2005 c50 s1; 2016 cM-5.01 s62

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Interpretation

††††††† 3. (1) For the purpose of this Act, a person is related to another person if, directly or indirectly, the person is

†††††††††††† (a) an affiliate, as defined in section 2 of the Corporations Act , of the other person, or

†††††††††††† (b) an affiliate of the other person or of the other personís affiliate, within the meaning of subsection (2) or (3).

†††††††††††† (2) For the purpose of paragraph (1)(b), a person is considered to be an affiliate of another person where the person

†††††††††††† (a) is a corporation and the other person, or a group of persons not dealing with each other at armís 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 armís 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.

†††††††††††† (3) For the purpose of paragraph (1)(b), a person is considered to be an affiliate of another person where the other person, or a group of persons not dealing with each other at armís length of which the other person is a member, has direct or indirect influence that, if exercised, would result in control in fact of that person except where the other person deals at armís length with that person and derives influence solely as a lender.

†††††††††††† (4) For the purpose of determining the market share of a defendant for a type of tobacco product sold in the province, the Trial Division shall calculate the defendantís market share for the type of tobacco product by the following formula:

†††††† dms = dm/mm x 100%

where

†††††† dms = the defendantís market share for the type of tobacco product from the date of the earliest tobacco related wrong committed by that defendant to the date of trial;

††††††† dm = the quantity of the type of tobacco product manufactured or promoted by the 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; and

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

2001 cT-4.2 s3

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Direct action by Crown

††††††† 4. (1)†The Crown has a direct and distinct action against a manufacturer to recover the cost of health care services caused or contributed to by a tobacco related wrong.

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

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

†††††††††††† (4) In an action under subsection (1), the Crown may recover the cost of health care services

†††††††††††† (a) for particular individual insured persons; or

†††††††††††† (b) on an aggregate basis, for a population of insured persons.

†††††††††††† (5) Where the Crown seeks in an action under subsection (1) to recover the cost of health care services on an aggregate basis,

†††††††††††† (a) it is not necessary

††††††††††††††††††††† (i) to identify particular individual insured persons,

†††††††††††††††††††† (ii) to prove the cause of tobacco related disease in a particular individual insured person, or

††††††††††††††††††† (iii) to prove the cost of health care services provided to a 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 services 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) a person is not compellable to answer questions with respect to the health of, or the provision of health care services to, a particular individual insured person;

†††††††††††† (d) notwithstanding paragraphs (b) and (c), on application by a defendant, the Trial Division may order the discovery of a statistically meaningful sample of the documents referred to in paragraph (b) and the order shall include directions concerning the nature, level of detail and type of information to be disclosed; and

†††††††††††† (e) where an order is made under paragraph (d), the identity of a particular individual insured person shall not be disclosed and all identifiers that disclose or may be used to trace the name or identity of a particular individual insured person shall be deleted from documents that are disclosed.

2001 cT-4.2 s4

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Recovery on aggregate basis

††††††† 5. (1)†In an action under subsection 4(1) for the recovery of the cost of health care services on an aggregate basis, subsection (2) of this section applies where the Crown proves, on a balance of probabilities, that, in respect of a type of tobacco product,

†††††††††††† (a) the defendant breached a common law, equitable or statutory duty or obligation owed to persons in the province 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, was offered for sale in the province.

†††††††††††† (2) The Trial Division shall presume that

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

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

†††††††††††† (3) Where the presumptions under paragraphs (2)(a) and (b) apply

†††††††††††† (a) the Trial Division shall determine the aggregate cost of health care services provided after the date of the breach referred to in paragraph (1)(a) resulting from exposure to the type of tobacco product; and

†††††††††††† (b) each defendant 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 the type of tobacco product.

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

2001 cT-4.2 s5

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Joint and individual liability

††††††† 6. (1) Two or more defendants in an action under subsection 4(1) are jointly and individually liable for the cost of health care services where

†††††††††††† (a) those defendants jointly breached a duty or obligation described in the definition of "tobacco related wrong"; and

†††††††††††† (b) as a consequence of the breach described in paragraph (a), at least one of those defendants is held liable in the action under subsection 4(1) for the cost of those health care services.

†††††††††††† (2) In an action under subsection 4(1), 2 or more manufacturers, whether or not they are defendants in the action, are considered to have jointly breached a duty or obligation described in the definition of "tobacco related wrong" where

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

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

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

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

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

2001 cT-4.2 s6

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Population based evidence

††††††† 7. Statistical information and information derived from epidemiological, sociological and other relevant studies, including information derived from sampling, is admissible as evidence for the purpose of establishing causation and quantifying the cost of health care services respecting a tobacco related wrong in an action brought by the Crown under subsection 4(1).

2001 cT-4.2 s7

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Limitation periods

††††††† 8. An action brought by the Crown under this Act within 2 years after the coming into force of this Act is not barred under the Limitations Act .

2001 cT-4.2 s8

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Apportionment of liability

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

†††††††††††† (2) Subsection (1) applies whether or not the defendant commencing an action or proceeding under that subsection has paid all or part of the cost of health care services caused or contributed to by the tobacco related wrong.

†††††††††††† (3) In an action or proceeding described in subsection (1), the Trial Division may apportion liability and order contribution among each of the defendants in accordance with the following:

†††††††††††† (a) the length of time a defendant engaged in the conduct that caused or contributed to the risk of tobacco related disease;

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

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

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

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

†††††††††††† (f) the extent to which a defendant 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 assumed a leadership role in manufacturing the type of tobacco product;

†††††††††††† (h) the efforts a defendant 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 continued to manufacture or promote 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 took to reduce the risk of tobacco related disease to the public; and

†††††††††††† (k) other considerations considered relevant by the Trial Division.

2001 cT-4.2 s9

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Regulations

††††† 10. The Lieutenant-Governor in Council may make regulations prescribing a form of tobacco under paragraph 2(n) and generally to give effect to the purpose of this Act.

2001 cT-4.2 s10

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Commencement

††††† 11. (1)†This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. (In force - Feb. 7/11)

†††††††††††† (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 subsection 4(1) arising from a tobacco related wrong, whenever the tobacco related wrong occurred.

2001 cT-4.2 s11