NDP bill's scope too broad, say businesses, lawyers
Lawyers, companies urge NDP to rethink legislation Eby says targets social media
When Premier David Eby introduced legislation to recover health-care costs from companies that market risky products in B.C., he claimed it targeted social media companies that exploit young people.
But the text of Bill 12, the Public Health Accountability and Cost Recovery Act, is far broader, with no indication that its powers are restricted to social media companies or their impact on young people.
Business leaders, drawing on analysis from several law firms, say the proposed legislation's sweeping powers would allow the government to go after manufacturers, grocers, service stations and anyone else who markets a product that carries any health risk whatsoever.
Not so, insists Attorney General Niki Sharma in a letter to the Greater Vancouver Board of Trade and other business associations that objected to the legislation.
“Businesses who are operating within rules and regulations set out for them by government do not need to be concerned,” she wrote April 5.
“Bill 12 remains focused on ensuring that those who knowingly cause harm are held accountable for the costs expended by government providing health-care services to its citizens as a consequence of that wrongdoing.”
Letters of intent from cabinet ministers do not have the same force as legislation. The criticisms are grounded in the text of the bill.
From the board of trade's letter of concern: “If enacted, the law appears to apply to any product, good, service or byproduct, which we understand can create liability for almost any business operating in or connected to B.C.
“Similarly, the Bill appears to apply not only to a product or service that may cause or may contribute to disease, injury, or illness, but also to any product/ service that contributes to even the risk of disease, injury, or illness without clear criteria for determining these risks or costs.”
From the law firm of McCarthy Tétrault: “The draft legislation permits government recovery in relation to the risk of disease, injury, or illness. It also defines disease, injury, or illness to include addiction and `problematic product use.'
“The permitted recovery also extends beyond health care costs to other expenditures by the government, made directly or through one or more agents, other intermediate bodies or education authorities, for programs, services, benefits or similar matters associated with disease, injury or illness.”
From the firm of Aird and Berlis: “It is not a defence to an action for damages caused by a health-related wrong that such an action has previously been adjudicated or settled. Previous actions involving decisions by the court or settlements of an action may be re-litigated.”
Other concerns include a provision for retroactivity and an expansion of the usual cutoff for litigation to 15 years from five. As evidence of expenditures incurred, the government need not provide proof beyond a certificate signed by the minister.
Still, Sharma maintains that there are ample protections for due process under the act.
“This act is about businesses who have knowingly engaged in wrongful behaviour: marketing a product they knew to be potentially unsafe as safe; deliberately designing products that are addictive in order to maximize profits; knowingly downplaying the risks associated with the use of a product; or purposefully marketing a product to youth which youth are not legally permitted to consume.”
Moreover, the law imposes a high test for conviction.
“The government would be required to prove the breach in court, prove that it was committed knowingly, prove that the use or exposure can cause or contribute to disease, injury or illness and prove that the product was offered for distribution use or sale to B.C. citizens.”
The attorney general did not dispute that the government intends to recover more than health-care costs.
“For example, it might allow for the recovery of the cost of educational programs about the harms of using these products and to discourage their use.”
She also suggested Bill 12 would give government the power to fast-track claims through the courts.
“It allows claims to proceed more efficiently in the courts where they otherwise could not, while still maintaining the basic principles of civil litigation.”
The latter may be a reference to a passage in the legislation which tells judges what they “must presume” in deciding a given claim.
Her letter suggests the New Democrats see the legislation as leverage to get companies to pay up, rather than be dragged through the courts. “Suing for damages in court is an action that would only ever be in the public interest for the province to undertake as a last resort, where other attempts at prevention work or constructive engagement with businesses have failed.”
The board of trade closed its letter by asking the government to put the bill on hold and “work with stakeholders to refine the intent, purpose, and language of the proposed law.”
Sharma closed her letter with no indication of a willingness to back off, merely an invitation to “meet with you to continue the conversation.”
I'm guessing that would be a waste of time, given the indications that the New Democrats intend to enact the bill's sweeping powers before the legislature adjourns next month.