Cost recovery

Just a quick update heading into the weekend. But before that — thanks everyone for sharing this newsletter and sending me feedback. It’s been great to read your responses. We’re now at 1,042 subscribers, which I couldn’t have anticipated when I started writing. Have a great weekend.

— Dylan Gibbs

• BC takes a far-reaching approach to healthcare cost recovery

• Canada appeals judicial vacancies ruling

• Ethical rules require technological competence

• Should Indigenous offenders need to prove their heritage?

LEGISLATION

The future of product liability

British Columbia just unveiled the Swiss Army knife of product liability. After using purpose-built statutes to recover healthcare costs from tobacco companies and opioid manufacturers, the province is introducing a new measure to go after any product that poses a health risk.

Recap: BC is a pioneer in the field of suing large corporations for healthcare costs. The province gave itself the power to sue tobacco companies with the Tobacco Damages and Health Care Costs Recovery Act. And it added the power to file a class action lawsuit on behalf of other provinces with the beefed-up Opioid Damages and Health Care Costs Recovery Act.

But it turns out those statutes were just the warm-up.

How broad can it get? The proposed Public Health Accountability and Cost Recovery Act has all the teeth of the opioid legislation and then some.

• It applies to goods, services, and by-products that contribute to disease, injury, or illness.

• It expands the concept of disease, injury, or illness to include “problematic product use”.

• It applies retroactively, with a 15-year limitation period.

• And it says that companies sued by the province can’t refer to past settlements or court rulings as a defence.

The icing on the cake is that the proposed legislation targets products that create a risk of harm — even if that harm doesn’t materialize. If the province establishes someone breached a legal duty and created a risk of harm, the statute says the court must presume that at least a portion of the population actually experienced that harm.

What’s next: The province has suggested that its first targets under the legislation will be social media companies, energy drink manufacturers, and the vaping industry. But the statute’s reach is much broader. As a McCarthy’s blog post put it, the law “create[s] liability for almost any business with a connection to British Columbia.” And if other provinces follow suit (as they did for tobacco and opioid litigation), the legislation may well create liability for almost any business.

Welcome to the future of product liability.

HEARSAY ROUNDUP

Canadiana

⏰ The federal government is appealing the Federal Court decision that criticized the number of judicial vacancies.

👨‍⚖️ Former Quebec Court of Appeal judge Jacques Delisle pled guilty to manslaughter for killing his wife. Delisle was convicted of murder in 2012 and spent 9 years in jail, but former justice minister David Lametti ordered a retrial in 2021. Delisle maintains that all he did was hand his wife a gun before she committed suicide. The Crown doesn’t agree but compromised with the manslaughter plea instead of going through with the retrial.

🌊 “A Tsunami is coming; driven by the desire of non-Indigenous people to get what they perceive to be the benefits of identifying as Indigenous.” That was the comment made by a provincial court judge who reluctantly accepted a joint submission on sentence. He said judges need proof before sentencing someone as an Indigenous person — especially for certain claims to Métis heritage.

👩‍💻 BC has joined the bulk of Canadian jurisdictions by including commentary about technological competence in its Code of Professional Conduct. It’s been a long time coming — the Federation of Law Societies of Canada brought technological competence into the Model Code in 2019.

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