Tobacco Damages and Health Care Costs Recovery Act, 2009

Bills that amended this Act0

No published amendment links yet for this Act.

Sections26

• 1Definitions and interpretation

  1 (1) In this Act, “cost of health care benefits” means the sum of, (a) the present value of the total expenditure by the Crown in right of Ontario for health care benefits provided for insured persons resulting from tobacco related disease or the risk of tobacco related disease, and (b) the present value of the estimated total expenditure by the Crown in right of Ontario for health care benefits that could reasonably be expected will be provided for those insured persons resulting from tobacco related disease or the risk of tobacco related disease; (“coût des prestations de soins de santé”) “disease” includes general deterioration of health; (“maladie”) “exposure” means any contact with, or ingestion, inhalation or assimilation of, a tobacco product, including any smoke or other by-product of the use, consumption or combustion of a tobacco product; (“exposition”, “exposer”) “health care…

• 1.
• 2Direct action by Crown

  2 (1) The Crown in right of Ontario has a direct and distinct action against a manufacturer to recover the cost of health care benefits caused or contributed to by a tobacco related wrong. 2009, c. 13, s. 2 (1). Action not subrogated (2) An action under subsection (1) is brought by the Crown in right of Ontario in its own right and not on the basis of a subrogated claim. 2009, c. 13, s. 2 (2). Action independent of recovery by others (3) In an action under subsection (1), the Crown in right of Ontario may recover the cost of health care benefits whether or not there has been any recovery by other persons who have suffered damage caused or contributed to by the tobacco related wrong committed by the defendant. 2009, c. 13, s. 2 (3). Recovery for individuals or on aggregate basis (4) In an action under subsection (1), the Crown in right of Ontario may recover the cost of health care benefi…

• 2.
• 3Recovery of cost of health care benefits on aggregate basis

  3 (1) In an action under subsection 2 (1) for the recovery of the cost of health care benefits on an aggregate basis, subsection (2) applies if the Crown in right of Ontario 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 Ontario 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 clause (a), the type of tobacco product, manufactured or promoted by the defendant, was offered for sale in Ontario. 2009, c. 13, s. 3 (1). Presumptions (2) Subject to subsections (1) and (4), the court shall presume, (a) that the population of insured persons who were exposed to the type of tobacco p…

• 3.
• 4Joint and several liability in an action under s. 2 (1)

  4 (1) Two or more defendants in an action under subsection 2 (1) are jointly and severally liable for the cost of health care benefits if, (a) those defendants jointly breached a duty or obligation described in the definition of “tobacco related wrong” in subsection 1 (1); and (b) as a consequence of the breach described in clause (a), at least one of those defendants is held liable in the action under subsection 2 (1) for the cost of those health care benefits. 2009, c. 13, s. 4 (1). Joint breach (2) For purposes of an action under subsection 2 (1), two or more manufacturers, whether or not they are defendants in the action, are deemed to have jointly breached a duty or obligation described in the definition of “tobacco related wrong” in subsection 1 (1) if, (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…

• 4.
• 5Population-based evidence to establish causation and quantify damages or cost

  5 Statistical information and information derived from epidemiological, sociological and other relevant studies, including information derived from sampling, is admissible as evidence for the purposes of establishing causation and quantifying damages or the cost of health care benefits respecting a tobacco related wrong in an action brought, (a) by or on behalf of a person in the person’s own name or as a member of a class of persons under the Class Proceedings Act, 1992; or (b) by the Crown in right of Ontario under subsection 2 (1). 2009, c. 13, s. 5.

• 5.
• 6Limitation periods

  6 (1) No action that is commenced within two years after the coming into force of this section by, (a) the Crown in right of Ontario; (b) a person, on his or her own behalf or on behalf of a class of persons; or (c) a person entitled to bring an action under section 61 (right of dependants to sue in tort) of the Family Law Act,

• 6.
• [s6]

  for damages, or the cost of health care benefits, alleged to have been caused or contributed to by a tobacco related wrong, is barred under the Limitations Act, 2002 or any other Act. 2009, c. 13, s. 6 (1). Certain actions revived (2) Any action described in subsection (1) for damages alleged to have been caused or contributed to by a tobacco related wrong is revived, if the action was dismissed before the coming into force of this section merely because it was held by a court to be barred or extinguished by the Limitations Act, 2002 or any other Act. 2009, c. 13, s. 6 (2). Apportioning liability

• 7.
• 7Scope

  7 (1) This section applies to an action for damages, or the cost of health care benefits, alleged to have been caused or contributed to by a tobacco related wrong other than an action for the recovery of the cost of health care benefits on an aggregate basis. 2009, c. 13, s. 7 (1). Two or more defendants (2) If a plaintiff is unable to establish which defendant caused or contributed to the exposure described in clause (b) and, as a result of a breach of a common law, equitable or statutory duty or obligation, (a) one or more defendants causes or contributes to a risk of disease by exposing persons to a type of tobacco product; and (b) the plaintiff has been exposed to the type of tobacco product referred to in clause (a) and suffers disease as a result of the exposure, the court may find each defendant that caused or contributed to the risk of disease liable for a proportion of the damag…

• 8.
• 8Apportionment of liability in tobacco related wrongs

  8 (1) This section does not apply to a defendant in respect of whom the court has made a finding of liability under section 7. 2009, c. 13, s. 8 (1). Action or proceeding for contribution (2) 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 other proceeding for contribution toward payment of the damages or the cost of health care benefits caused or contributed to by that wrong. 2009, c. 13, s. 8 (2). Action or proceeding may be commenced even if damages or costs not paid (3) Subsection (2) applies whether or not the defendant commencing an action or other proceeding under that subsection has paid all or any of the damages or the cost of health care benefits caused or contributed to by the tobacco related wrong. 2009, c. 13, s. 8 (3). Apportioning liability and contr…

• 9.
• 10.
• 9Regulations

  9 The Lieutenant Governor in Council may make regulations, (a) prescribing a form of tobacco for the purposes of clause (i) of the definition of “type of tobacco product” in subsection 1 (1); (b) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act. 2009, c. 13, s. 9.

• 10Retroactive effect

  10 When brought into force under section 13, 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 2 (1) arising from a tobacco related wrong, whenever the tobacco related wrong occurred. 2009, c. 13, s. 10.

• 11.
• 11

  11 Omitted (provides for amendments to this Act). 2009, c. 13, s. 11.

• 12

  12 Omitted (amends, repeals or revokes other legislation). 2009, c. 13, s. 12.

• 13

  13 Omitted (provides for coming into force of provisions of this Act). 2009, c. 13, s. 13.

• 14

  14 Omitted (enacts short title of this Act). 2009, c. 13, s. 14. ______________