Debates of August 23, 2011 (day 16)

Agreed.

With that, I’d like to thank the Minister and thank the witnesses. Sergeant-at-Arms, escort the witnesses out.

As we agreed, next is Bill 23, Tobacco Damages and Health Care Costs Recovery Act. The Minister responsible for the bill, the Minister of Justice, Mr. Lafferty.

Mr. Chairman, I am pleased to be here to present about Bill 23, Tobacco Damages and Health Care Costs Recovery Act.

It has long been recognized that tobacco exposure is linked to serious health conditions in both smokers and non-smokers, including emphysema, heart disease and several types of cancer. The NWT has a very high rate of smoking and the need for many patients to travel south for treatment results in very high costs for our government.

This legislation would permit the GNWT to file a lawsuit to recover from past and future health care costs for smoking-related illnesses directly from tobacco companies. Currently all Canadian jurisdictions, with the exception of Yukon and the Northwest Territories, have enacted this kind of legislation. Nunavut was the first of the three territories to pass cost recovery legislation in November of 2010.

Mr. Chair, I would be pleased to answer questions that Members may have regarding Bill 23.

Thank you, Mr. Minister. Apparently, there is no committee report because the bill was referred directly from second reading right to Committee of the Whole, so there is no committee report on this bill. At this time, I’d like to ask the Minister if he’ll be bringing in witnesses. Minister of Justice.

Yes, I would, Mr. Chair.

Does committee agree the Minister brings in his witnesses?

Agreed.

Sergeant-at-Arms, escort the witnesses in.

For the record, Mr. Minister, introduce your witnesses.

Mahsi, Mr. Chair. To my left is Karan Shaner, the assistant deputy minister of Justice; to my right, Ian Rennie, legislative counsel.

Thank you, Mr. Minister. Welcome witnesses. General comments on Bill 23. Mr. Bromley.

Thank you, Mr. Chair. Just some quick questions to the Minister. Does the GNWT currently have any actions underway against manufacturers of tobacco products?

Minister of Justice.

Mahsi, Mr. Chair. No, we don’t.

Thanks to the Minister. I noted in the Minister’s comments that NWT residents have a higher rate of addictions to nicotine than most jurisdictions and I think we’re all aware of that. I’m wondering what the consequences are of this to any future considerations of actions under this legislation. Are there consequences to being a much higher rate of addictions than in the provinces, for example?

Ms. Shaner.

Thanks, Mr. Chairman. Not in terms of this legislation.

The other aspect of that is while we have really intense users of tobacco products, we are fewer in numbers. Are there implications here to potential actions we can consider? Again, given that we have a very large proportion of our population that is using tobacco products, are there implications of this legislation given that? Thank you.

The trade-off, I guess, if I can use that word, is that although we have fewer numbers, we do have the, as you mentioned, very high rate of smoking. We also have very high health care costs compared to other jurisdictions because of the need for air travel and the need for southern facilities and a lot of the smoking-related illnesses that we have to treat.

I appreciate that information. I guess my last question here in this line is: have other jurisdictions started actions under similar legislation? Is it underway now or are they contemplating it, and does this legislation position us to join them hopefully to enjoy the benefits of associating with a much larger jurisdiction and the capacity they bring?

With respect to the latter question, absolutely it does position us to perhaps try and work out some economies of scale. With respect to other jurisdictions, there are a number which have started lawsuits. British Columbia was the first to start a lawsuit. Alberta is very near to starting one. Ontario has one, Newfoundland has one, New Brunswick has one, Quebec is hoping to file -- they may have filed or at some time in the near future -- and all of the other jurisdictions with the exception of the Yukon and, of course, the Northwest Territories, have this legislation and most are contemplating, of course, an action of this nature.

That was exactly what I wanted to know, that there is an opportunity for an economy of scale by joining other jurisdictions. In this case, I’m curious to learn that Alberta is near to that and they’re obviously our neighbour, the one we do the most business with. Is there potential, given the timing of this legislation and their action underway, that we could hook up with Alberta in their possible pending action? Thank you.

We would actually file our own action. So this wouldn’t allow us to join other jurisdictions in their actions, but where we could possibly realize some benefit is just in the sharing of information because the legislation across the country is virtually identical and the issues are virtually identical.

So just for my clarity here, there are no partnerships between jurisdictions like provincial and/or federal in the actions that are underway.

Minister of Justice.

Mahsi, Mr. Chair. They have their own bills such as the one that’s before us now. Each jurisdiction has their own initiative to proceed with their lawsuits. Mahsi.

General comments in regard to Bill 23. Ms. Groenewegen.

Thank you, Mr. Chairman. Has anyone had success to date in any lawsuit? Is there any precedent law been set, any precedent ruling been set with respect to public governments suing tobacco companies to recover costs of health care services? Is there any precedent?

Of course, I’m also curious to know what kind of money we are willing to allocate as a government if we are going to embark on such an action against tobacco companies. Thank you, Mr. Chairman.

Ms. Shaner.

Thank you. This type of legislation actually originated in Florida and there was success enjoyed in Florida with respect to state-funded medical care. In Canada, the province of British Columbia was the first jurisdiction to pass this legislation. They passed three iterations of it and went to the Supreme Court of Canada three times before they finally had a version, upon which all of the other legislation is modelled, that was considered constitutional.

British Columbia is, to my understanding, quite near going to trial, but they haven’t gotten to trial yet. So I guess the short answer is no, there’s no precedent in Canada. However, we’re very near to getting a precedent established.

Would it make sense for our government, being a small jurisdiction with limited financial resources, to perhaps hold off on trying to develop some kind of action against the tobacco companies until someone else has basically broken the trail, has gone ahead of us, has proven in the courts that it is actually possible to get compensation for this? Again, I know there’s some economies of partnering with other jurisdictions that are pursuing the same thing, but just in terms of our timing and our resources, if we could see the success that someone else had and try to mirror some kind of an action on what someone else has done in a province that has a lot more money than we do, would that be not the wise course of action to take? Thank you.

Minister of Justice.

Mr. Chair, I’ll get Karan to elaborate more on this particular area, but I just want to stress that there is a national strategy that the parties are involved from provincial and territorial jurisdictions. Once we file, let’s say the bill comes into effect and we file a lawsuit, we’ll be part of that national strategy. So we can seek out the information and input and others on what they’ve been through, but if Karan wants to elaborate a bit more on Ms. Groenewegen’s question.

Ms. Shaner.

Thank you. There has been to date a bit of a cost-benefit analysis done and in fact we waited before bringing this kind of legislation forward to see if it was even worthwhile. We waited for British Columbia’s to get the blessing of the Supreme Court of Canada. If the government does in fact decide to move forward with a lawsuit, then that cost-benefit analysis will, of course, have to be done and the considerations will be whether it is more beneficial to hire in-house counsel, what kind of expertise we’re going to need, whether or not we can share with other jurisdictions with respect to what they’ve learned and those kinds of things.

Mrs. Groenewegen.

I have six minutes on the clock left, thank you. I’d like to ask the Minister when we would partner or collaborate with other jurisdictions to proceed down this path, supposing we get to that where we’re going to try and recover health care costs, are the actions of our government going to be judged and the question asked what did we do to mitigate damages ourselves? I would suggest that other jurisdictions have far more proactive legislation rules when it comes to this, like, for example, people smoking in their vehicles with the windows rolled up and their children in there. I mean, it’s a well known fact that health effects of second-hand smoke that will manifest themselves, surface later in life. Sometimes they are tracked back to children who are exposed to second-hand smoke. We don’t have the most up-to-date kind of rules over those kinds of protections. I mean, would it come back on the GNWT and say, yes, you do have high health care costs related to smoking, but what did you do as a jurisdiction to mitigate the harm of tobacco through cessation programs, through protection of children, through whatever we could do, prevention measures. Would we be judged on what we did or did not do in relation to the success of such a lawsuit? Thank you.

Thank you. Those questions are being asked in other jurisdictions and we would need to be prepared to show what we did do to mitigate. The fact that our mitigation efforts may not have been successful, I don’t think are going to mean that we would necessarily not succeed in a lawsuit of this nature.

Mrs. Groenewegen, you have four minutes.

Thank you, Mr. Chair. That’s all I have. Thank you.

General comments. Minister of Health.