Ottawa named as defendant in BC tobacco lawsuit

In an October post, I pointed out the blatant hypocrisy of a lawsuit against Canada's tobacco companies launched by the Ontario government. I noted that the tobacco companies had been vilified for decades for putting profit before health, while government profiteering (in the form of tobacco taxation) was routinely ignored.

British Columbia was the first province to launch legal action against the tobacco companies. Their lawsuit was filed in 2001 to recover billions of dollars allegedly spent by the health-care system for treating “smoking-related disease”.

Since the BC lawsuit was filed, six other provinces, Ontario, Newfoundland and Labrador, Nova Scotia, Manitoba, New Brunswick and Saskatchewan, have jumped aboard the bandwagon and have passed, or are in the process of passing, legislation that will allow similar legal action in their respective jurisdictions.

In March 2008, the tobacco companies petitioned the British Columbia Supreme Court to add Ottawa as a third party defendant arguing that the federal government should also be held liable “as senior partners” of the tobacco industry by keeping it legal and collecting tax revenue from it.

And, it's really hard to argue with their logic.

Both senior levels of government have been aware of the alleged health hazards of smoking for decades. The federal government could have legislated against the manufacture and distribution of tobacco at any time. Instead, they chose the course of action recommended by anti-smoker zealots: extortionist levels of taxation and draconian smoking bans. They chose to protect the billions of dollars they and their provincial counterparts collect annually from the sale of tobacco products.

Initial efforts to have Ottawa named as a third party defendant in the lawsuit were dismissed in court. But early in December, the British Columbia Court of Appeal reversed that decision, at least in part. Ottawa may now be held liable when the case goes to trial.

The latest ruling by the BC Court of Appeal will likely impact lawsuits pending in other provinces, setting precedent for naming the federal government as a third party defendant in those cases.

The ruling will also affect a class action lawsuit, filed in BC against Imperial Tobacco, which alleges consumers were misled into believing that cigarettes labeled "mild" or "light" were safer to smoke than regular cigarettes. Imperial Tobacco contends that Ottawa initiated and promoted the development and sale of low tar tobacco products.

This is also a reasonable claim. Starting sometime back in the sixties, the anti-smoker crowd (including the federal government) was indeed calling for the tobacco industry to reduce the tar and nicotine content in cigarettes. The tobacco companies voluntarily accepted those proposals, reduced tar and nicotine and added labels to their packaging indicating the levels of various components.

Naming the federal government as a third party defendant will complicate the proceeding in BC and subsequent lawsuits in other jurisdictions. If tobacco is the health hazard it's made out to be, both the federal and provincial governments are duplicitous in its continued sale and distribution And, they must also be prepared to accept a significant portion of health care costs.

Tobacco control strategies (graphic warnings on cigarette packages, for example) employed by government indicate that they were aware of the potential health hazards of smoking. If the tobacco companies can be held accountable for marketing a potentially hazardous product, the federal government should be held accountable for allowing it to continue long after they became aware of the possible dangers.

In addition, during the last two decades, government has extorted tobacco taxes from smokers that, annually, far exceed the profits of all three major tobacco companies combined. They are as guilty of exploiting tobacco consumers as the tobacco companies.

The British Columbia lawsuit, claiming unspecified damages, is not likely to be settled any time soon. Trial is not expected to begin until 2011. And, it is likely to be a lengthy trial, costing many millions of dollars. And, whatever the outcome of the trial, there will be the inevitable appeal.

Hopefully, I'll live long enough to see the outcome.