© 1999  Karen Selick
B.C.'s Smoke Signals Spell Injustice
An edited version of this article first appeared in the March, 1999 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


B.C.'s Smoke Signals Spell Injustice

Things have come to a pretty pass in the B.C. government’s lawsuit against tobacco manufacturers.  I was hoping to make this column a satire on the subject—you know, throw in a few absurd comparisons to highlight the preposterousness of it all—but when I started looking at the subject more closely, I found I couldn’t concoct an example that came even close to being as bizarre as the real life lawsuit.  B.C. residents are about to become players in a grotesque legal farce that will make Franz Kafka’s worst nightmare seem like a tea party. 

The press releases issued by the B.C. government didn’t do justice to the novelty or scope of what it’s got up its sleeve.  "We’ll make the tobacco industry take responsibility for the harm their products cause".  Ho hum.  We’d heard it all before from more than 40 U.S. states suing Big Tobacco.

The real news, the part that never made it into the press releases, is not the lawsuit itself, but the underlying legislative changes that are bound to make the lawsuit a sure winner for Big Government.  In a short statute called The Tobacco Damages and Health Care Costs Recovery Act, the province virtually repeals most of the fundamental principles of tort law established over several centuries of jurisprudence. 

Maybe "Province rewrites tort law" wouldn’t have made a very exciting headline.  The public generally isn’t familiar with the word tort and probably wouldn’t care much about some law dealing with fancy cakes.  But to anyone with legal training, this statute is breathtaking in its audacity, and terrifying in its potential--unless, of course, you’re a plaintiff’s lawyer hoping to cash in on the magnificent windfall in legal fees it will generate.

Here’s a quick tour of what the new law "accomplishes". 

For starters, it eliminates that pesky old requirement of proving causation.  Back in the bad old days, Scrooge-like judges would stubbornly insist that plaintiffs couldn’t recover any loot unless they could prove that some act of the defendant had actually caused their loss.   This progressive new law now directs a court trying a tobacco case that it must presume that exposure to tobacco products caused or contributed to disease.

In the bad old days, the onus was on the plaintiff to prove its case.  Now, the onus will be on defendant tobacco manufacturers to prove that they didn’t cause the plaintiff’s problems. 

There’s another section that makes statistical information admissible as evidence "for the purpose of establishing causation and quantifying damages."  This is an attempt to repeal not only a traditional rule of evidence, but also the laws of logic.  Correlation is not the same as causation.  Didn’t the phrase post hoc ergo propter hoc ring any bells for members of the B.C. legislature?   How about "Lies, damned lies and statistics"?  There are other factors besides smoking that correlate to an increased risk of cancer, heart disease and other diseases often described as "smoking-related".  One is low income.  After it slays the tobacco dragons, will the B.C. government next take a run at some new corporate villain that it presumes by statute to be the cause of poverty? 

Then there’s a darling little section that abolishes that old-fashioned requirement for plaintiffs to prove the amount of their damages.  It says the B.C. government can issue a certificate setting out the cost of the health care benefits it has provided to smokers, and the amount named in the certificate is conclusive evidence of the cost.  Well, heck, why not?  Every trial lawyer and every judge knows how tedious it can be to sit through all that conflicting evidence about damages.  And we all know we can trust the government to produce financial calculations that are painstakingly accurate—especially the B.C. government.  So we shouldn’t think of this as a substantive change in the law—just a welcome convenience for all concerned.

Finally, to round out the assortment of goodies, we have a section repealing the Limitation Act for tobacco lawsuits.  Actually, it goes somewhat further than that—it even revives lawsuits that had been dismissed as statute-barred before enactment of the new legislation.  Talk about governing retroactively.

The only thing more repugnant than the stunts pulled by this legislation is the philosophy supposedly driving it—the notion that tobacco manufacturers should be held responsible for the health care costs of smokers, while smokers themselves shouldn’t be.  Smokers aren’t innocent victims preyed upon by malevolent corporations.  Polls show that not only are smokers aware of the risks involved, but many actually tend to overestimate the risk of death compared with the real statistical probabilities.  Still they choose to smoke. 

Smokers pay more for life insurance.  There’s no reason why they couldn’t be charged a premium for health insurance.  In fact, a plausible argument can be made that they already more than cover their extra health care costs through existing tobacco taxes.

When governments persistently ignore this argument in favour of destroying traditional concepts of liability law, they demonstrate that their goal is neither assigning responsibility where it belongs, nor promoting justice. 

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Other articles of mine on the B.C. tobacco lawsuit can be found here (Vancouver Sun) and here (National Post).


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June 20, 2000