[Intl-tobacco] B.C. tobacco suit ruled unconstitutional (fwd)

[Robert Weissman]

B.C. tobacco suit ruled unconstitutional
Source: Toronto Star, Tuesday, 2/22/00

   VANCOUVER (CP) - The provincial government's lawsuit against tobacco
companies can't go ahead because it's based on a provincial law that is
unconstitutional, the B.C. Supreme Court has ruled.

   Several provinces have been watching the B.C. action with a view to
launching similar suits of their own.

   But a lawyer for British Columbia said Monday he doesn't expect the
ruling to put an end to the province's intentions to sue.

   ''This journey has taken a turn, which is undoubtedly disappointing for
the government, but it doesn't change the direction or ultimate
destination of what the government intends to achieve,'' said Dan Webster,
who helped argue the province's case.

   The court decision, released by the parties involved Monday, said
sections of the provincial law try to lump all the tobacco companies
together while ignoring the fact they are federally incorporated and
individual.

   ''I find the Tobacco Damages and Health Care Costs Recovery Act to be
inconsistent with the provision of the Constitution of Canada'' and is
beyond the jurisdiction of the province, wrote Justice Ronald Holmes.

   Holmes said he found the ''dominant characteristic'' of the legislation
to be the pursuit nationally and internationally of the tobacco industry
for the cost of health care benefits incurred by the government of B.C.

   ''The extra-territorial reach of the act places it beyond the
constitutional competence of the province,'' he wrote.

   But Webster said there are remedies to the problems Holmes highlighted.

   He said the province has three options: It can appeal the ruling,
change the legislation or go after the three Canadian tobacco companies
separately.

  ''When the government decided that it was going to attempt to hold the
tobacco industry accountable for the devastating effects of its harmful
and addictive products, it appreciated that this would be a long and
hard-fought journey,'' Webster said.

   A spokesman for the Canadian Tobacco Manufacturers' Council said the
ruling should send a message to the B.C. government.

   ''We urge co-operation rather than expensive lawsuits,'' said Dave
Laundy.

   ''We hope governments will stand back and see how they manage their
tobacco strategy.''

   He urged the governments and the industry have a meeting to discuss
ways to deal with the effects of tobacco, particularly smoking by young
people.

   In Ottawa, a spokesman for the Canadian Cancer Society urged the B.C.
government to pursue its initial action.

   ''We see from the U.S. experience that some big U.S. states have been
successful,'' said Rob Cunningham, a lawyer and the society's policy
analyst. ''B.C. should persist.''

   Cunningham suggested the B.C. government consider filing its lawsuit in
the U.S.

   ''If they can't bring it in B.C., they have to bring it somewhere
(although) it may mean more of a role for the federal government.'

   The B.C. act was proclaimed in 1997 and amended last year.

   It makes it easier for the government to sue cigarette manufacturers to
recover the costs of treating smoking-related diseases. The tobacco
companies countersued, arguing the law is unconstitutional.

   Seven tobacco companies, including three Canadian manufacturers, took
part in the countersuit.

   British Columbia's law is modelled on Florida legislation that helped
net a $256-billion US settlement with American tobacco firms.

   The amended B.C. law allows the government to set the ground rules for
a lawsuit it intends to file.

   The industry also complains the law requires the court to accept the
government's data on the direct health-care costs the province claims stem
from smoking.

   As of last fall, five other suits were being considered, three in
Ontario and two in Quebec.

   Newfoundland was mulling a B.C.-style law and Manitoba planned court
action. New Brunswick has said it is also considering such a move.

   Cunningham said the effect of the B.C. ruling on other possible suits
is not yet clear because the judge's other comments in the long ruling has
to be studied.

   The stakes are huge.

   Although the B.C. government has not spelled out how much money it
hopes to recover from tobacco firms, another lawsuit being considered in
Ontario is said to be worth $40 billion (U.S.).

   If Holmes's ruling is appealed, it could be years before British
Columbia and other provinces actually get to court to sue the companies.

   Industry lawyers argued the law violates the unwritten rule against
retroactively penalizing anyone for something that was previously legal.

   They also said the law violates the Constitution because it allows the
government to collect costs for any past ''smoking-related wrong,''
including those incurred before the law was passed.

   Tom Berger, a former B.C. Supreme Court judge acting for the province,
argued last fall it was up to the courts to decide if the lawsuit should
go ahead.

   He said the law is perfectly within the authority of the provincial
legislature and accused the tobacco companies of trying to bog down the
court process.

   Berger said 6,000 people die in British Columbia and thousands more
become ill with tobacco-related diseases each year.

   The province spends a half-billion dollars each year in health costs as
a result.

   The industry's legal team had marshalled 18 volumes of legal precedents
to buttress its technical and constitutional arguments against the B.C.
law.