The B.C. government’s 13-year court battle to collect billions of dollars in compensation from tobacco giants Imperial Tobacco Canada Ltd., Rothman’s, Benson & Hedges Inc. and JTI-Macdonald Corp. has frustrated observers for taking so long.
It did inch closer to a conclusion on July 29, however, when the Supreme Court of Canada (SCC) ruled that the federal government cannot be considered a third-party defendant in provincial government lawsuits that attempt to recoup health-care money spent on people who have diseases caused by smoking.
B.C. launched its lawsuit against those cigarette manufacturers in 1998 and the case has been bogged down in courts ever since.
The court action’s snail pace, however, did not prevent New Brunswick (in 2008), Ontario (2009) and Newfoundland (2011) from launching similar lawsuits against the tobacco giants.
Nor is it expected to deter Quebec and Alberta from launching lawsuits later this year.
“I am pleased with the [SCC] court decision,” Barry Penner told Business in Vancouver on August 18, mere hours before he stepped down as the province’s attorney general so he can spend more time with his family.
“The court has unanimously ruled that the tobacco manufacturers are not entitled to shift their blame for their conduct to the federal government. The ruling allows the B.C. government to continue to focus on what has always been the central issue in this litigation – the wrongful conduct of the tobacco industry.”
Legal insiders say that the recent SCC judgment clears the way for a one-on-one battle between B.C. and big tobacco companies – a legal showdown that will be simpler without the complexity of having the federal government involved.
“Any time that there are fewer litigants in the mix, its always easier to reach some sort of accommodation and the trial will move a lot quicker if it goes to trial,” said Wally Oppal, who was B.C.’s attorney general between June 2005 and June 2009.
The long grind to get to this point, however, is a symptom of a legal system run amok according to Oppal, who has been critical of how long it is taking for the Crown to lay charges against rioters who vandalized and looted Vancouver’s downtown core on June 15.
“Its an embarrassment,” said Oppal of B.C.’s long-running court battle against large tobacco companies. “Its right out of Dickens’ Bleak House.”
That Dickens novel, published in instalments in 1952 and 1853, documented long-running litigation in England’s Court of Chancery.
“If somebody came here from another planet, it would be hard to explain why things have taken so long. It really goes to show you what’s wrong with our system when it takes that long to resolve a particular issue,” Oppal told BIV. “You wonder after a while what the purpose of it all is.”
He stressed, however, that B.C.’s lawsuit against big tobacco companies will not be thrown out of court for taking so long. That’s because lawyers have been active providing discoveries and making arguments to various courts. They have not been sitting on their hands, he said.
Some success is that Victoria and the tobacco manufacturers have resolved disputes surrounding constitutional and jurisdictional issues.
In September 2005, the SCC confirmed the constitutional validity of B.C.’s 2001 law, the Tobacco Damages and Health Care Costs Recovery Act, which B.C. specifically implemented to allow it to pursue the recovery of health-care costs from big tobacco companies.
Victoria then launched a similarly named but broader Health Care Costs Recovery Act in 2008, which came into effect April 1, 2009.
That act compels lawyers and insurers to notify the B.C. government each time they launch a lawsuit where costs have been incurred by the provincial health-care system because of possible third-party wrongdoing.
Victoria may then join the action to ensure the ministry’s right to recover the health-care costs is preserved. If it is appropriate, the government can also launch its own action.
Between April 1, 2009, and April 30, 2011, the Health Care Costs Recovery Act spurred the province to open 8,153 cases, according to the B.C. Ministry of the Attorney General.
Of those, 2,814 cases have been closed and the province has recovered $6.2 million. That includes $2.4 million in the first year and $3.8 during the fiscal year 2010-11. •
