British Columbia v. Imperial Tobacco Canada Ltd. et al., (2005) 218 B.C.A.C. 1 (SCC)

JudgeMcLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
CourtSupreme Court (Canada)
Case DateJune 08, 2005
JurisdictionCanada (Federal)
Citations(2005), 218 B.C.A.C. 1 (SCC);2005 SCC 49;EYB 2005-95296;[2006] 1 WWR 201;AZ-50335185;JE 2005-1753;[2005] BCWLD 5973;339 NR 129;[2005] 2 SCR 473;257 DLR (4th) 193;218 BCAC 1;142 ACWS (3d) 425;[2005] SCJ No 50 (QL);[2005] CarswellBC 2207;45 BCLR (4th) 1;134 CRR (2d) 46

B.C. v. Imperial Tobacco (2005), 218 B.C.A.C. 1 (SCC);

    359 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2005] B.C.A.C. TBEd. SE.034

Imperial Tobacco Canada Limited (appellant) v. Her Majesty the Queen in Right of British Columbia (respondent)

Imperial Tobacco Canada Limited (appellant) v. Attorney General of British Columbia (respondent)

Rothmans, Benson & Hedges Inc. (appellant) v. Her Majesty the Queen in Right of British Columbia (respondent)

Rothmans, Benson & Hedges Inc. (appellant) v. Attorney General of British Columbia (respondent)

JTI-Macdonald Corp. (appellant) v. Her Majesty the Queen in Right of British Columbia (respondent)

JTI-Macdonald Corp. (appellant) v. Attorney General of British Columbia (respondent)

Canadian Tobacco Manufacturers' Council (appellant) v. Her Majesty the Queen in Right of British Columbia (respondent)

British American Tobacco (Investments) Limited (appellant) v. Her Majesty the Queen in Right of British Columbia (respondent)

Philip Morris Incorporated, Philip Morris International Inc. (appellants) v. Her Majesty the Queen in Right of British Columbia (respondent) and Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General for Saskatchewan, Attorney General of Alberta and Attorney General of Newfoundland and Labrador (intervenors)

(30411; 2005 SCC 49; 2005 CSC 49)

Indexed As: British Columbia v. Imperial Tobacco Canada Ltd. et al.

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

September 29, 2005.

Summary:

The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, authorized an action by the government of British Columbia against tobacco manufacturers for recovery of health care expenditures incurred by the government to treat tobacco related diseases. The government of British Columbia brought an aggregate action pursuant to s. 2 of the Act against 14 defendants in the tobacco industry, including the appellants. The appellants, Imperial Tobacco Canada Limited, Rothmans, Benson & Hedges Inc., JTI-Macdonald Corp. and Canadian Tobacco Manufacturers' Council, were Canadian corporations that were served in British Columbia. The appellants, Philip Morris Incorporated (now Philip Morris USA Inc.) and Philip Morris International Inc., were incorporated under the laws of Virginia and Delaware and were served ex juris. The appellant, British American Tobacco (Investments) Limited, was incorporated under the laws of the United Kingdom and was also served ex juris. The Canadian appellants applied for declarations that the Act was unconstitutional. The appellants served ex juris applied to set aside service on the basis that the Act was unconstitutional. The appellants argued that the Act exceeded the territorial limits on provincial legislative jurisdiction, violated judicial independence and infringed the rule of law.

The British Columbia Supreme Court, in a decision reported at [2003] B.C.T.C. 877, held that the Act was unconstitutional on the extra-territoriality ground. The court would have found the Act to be constitutional on the judicial independence and rule of law grounds. The court declared the Act invalid, dismissed the government's actions brought pursuant to the Act and set aside all ex juris service by the government. The British Columbia government appealed.

The British Columbia Court of Appeal, in a decision reported at 199 B.C.A.C. 195; 326 W.A.C. 195, allowed the appeals. The court held that the pith and substance of the Act was "property and civil rights in the province" within the meaning of s. 92(13) of the Constitution Act, 1867. The extra-territorial aspects of the Act, if any, were incidental to it and the Act was therefore not invalid by reason of extra-territoriality. The court also held that the Act did not offend judicial independence or the rule of law. The court set aside the orders dismissing the government's actions. The applications of the appellants served ex juris to have service set aside were remitted to the British Columbia Supreme Court to be decided on the basis that the Act was constitutionally valid. The appellants appealed.

The Supreme Court of Canada dismissed the appeals. The Act was constitutionally valid. It did not exceed territorial limits on provincial legislative jurisdiction, nor did it violate judicial independence or the rule of law.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - The appellants argued that certain legislation was constitutionally invalid as offending the rule of law - The appellants submitted that the rule of law required that legislation: (1) be prospective; (2) be general in character; (3) not confer special privileges on the government, except where necessary for effective governance; and (4) ensure a fair civil trial - The Supreme Court of Canada stated that acknowledging the constitutional force of anything resembling the appellants' conceptions of the rule of law would seriously undermine the legitimacy of judicial review of legislation for constitutionality - Many of the requirements of the rule of law proposed by the appellants were simply broader versions of rights contained in the Charter - For example, the proposed fair trial requirement was a broader version of s. 11(d) of the Charter, which enshrined the fair trial right only for those "charged with an offence" - The court stated that "the appellants' conception of the unwritten constitutional principle of the rule of law would render many of our written constitutional rights redundant and, in doing so, undermine the delimitation of those rights chosen by our constitutional framers" - See paragraph 65.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - The appellants argued that certain legislation was constitutionally invalid as offending the rule of law - The appellants submitted that the rule of law required that legislation: (1) be prospective; (2) be general in character; (3) not confer special privileges on the government, except where necessary for effective governance; and (4) ensure a fair civil trial - The Supreme Court of Canada stated that acknowledging the constitutional force of anything resembling the appellants' conceptions of the rule of law would seriously undermine the legitimacy of judicial review of legislation for constitutionality - The court stated that "the appellants' arguments overlook the fact that several constitutional principles other than the rule of law that have been recognized by this Court - most notably democracy and constitutionalism - very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the requirements, such as judicial independence, that flow by necessary implication from those terms). Put differently, the appellants' arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box" - See paragraph 66.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - The appellants argued that certain legislation was constitutionally invalid as offending the rule of law - The appellants submitted that the rule of law required that legislation: (1) be prospective; (2) be general in character; (3) not confer special privileges on the government, except where necessary for effective governance; and (4) ensure a fair civil trial - The Supreme Court of Canada rejected the argument - Each of the appellants' proposed requirements of the rule of law had, as a matter of precedent and policy, no constitutional protection - See paragraphs 57 to 68.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, authorized an action by the government of British Columbia against tobacco manufacturers for recovery of health care expenditures incurred by the government to treat tobacco related diseases - The British Columbia government brought an action against the appellants under the Act - The appellants argued that the Act was constitutionally invalid as offending the rule of law - The Supreme Court of Canada rejected the appellants' submission that the Constitution, through the rule of law, required that legislation be general in character and devoid of special advantages for the government (except where necessary for effective governance) and that it ensure a fair civil trial - The court stated that "the appellants' conception of a 'fair' civil trial seems in part to be of one governed by customary rules of civil procedure and evidence ... there is no constitutional right to have one's civil trial governed by such rules. Moreover, new rules are not necessarily unfair ... The fact that defendants might regard that law (i.e. the Act) as unjust, or the procedural rules it prescribes as unprecedented, does not render their trial unfair" - See paragraphs 73 to 77.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - The appellants argued that the Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, was invalid because it offended the rule of law - The Supreme Court of Canada stated that "This court has described the rule of law as embracing three principles. The first recognizes that 'the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power'... The second 'requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order' ... The third requires that 'the relationship between the state and the individual ... be regulated by law' ... So understood, it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the Act based on its content. That is because none of the principles that the rule of law embraces speak directly to the terms of legislation ... the government action constrained by the rule of law as understood in Reference re Manitoba Language Rights and Reference re Secession of Quebec is, by definition, usually that of the executive and judicial branches. Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e. the procedures by which legislation is to be enacted, amended and repealed)" - See paragraphs 58 to 60.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, authorized an action by the government of British Columbia against tobacco manufacturers for recovery of health care expenditures incurred by the government to treat tobacco related diseases - The government of British Columbia brought an action against the appellants under the Act - The appellants argued that the Act was constitutionally invalid as offending the rule of law - They submitted, inter alia, that the rule of law required that legislation be prospective - The Supreme Court of Canada stated that "Except for criminal law, the retrospectivity and retroactivity of which is limited by s. 11(g) of the Charter, there is no requirement of legislative prospectivity embodied in the rule of law or in any provision of our Constitution" - See paragraphs 69 to 72.

Constitutional Law - Topic 114

Definitions - Rule of law - [See all Constitutional Law - Topic 5.3 ].

Constitutional Law - Topic 542

Powers of parliament and the legislatures -Limitations on powers of legislatures - Rule of law - [See all Constitutional Law - Topic 5.3 ].

Constitutional Law - Topic 772

Territorial limits - Provinces - British Columbia - [See first, second, third and fourth Constitutional Law - Topic 6753 ].

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance - General principles - [See first, second and fifth Constitutional Law - Topic 6753 ].

Constitutional Law - Topic 6753

Provincial jurisdiction (s. 92) - General principles - Territorial limitation - The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, authorized an action by the government of British Columbia against tobacco manufacturers for recovery of health care expenditures incurred by the government to treat tobacco related diseases - The Supreme Court of Canada held that the Act was not invalid by reason of extra-territoriality, being in pith and substance legislation in relation to "property and civil rights in the province" under s. 92(13) of the Constitution Act, 1867 - The court stated that "the cause of action that is the pith and substance of the Act serves exclusively to make the persons ultimately responsible for tobacco-related disease suffered by British Columbians - namely, the tobacco manufacturers who, through their wrongful acts, caused those British Columbians to be exposed to tobacco - liable for the costs incurred by the government of British Columbia in treating that disease. There are thus strong relationships among the enacting territory (British Columbia), the subject matter of the law (compensation for the government of British Columbia's tobacco-related health care costs) and the persons made subject to it (the tobacco manufacturers ultimately responsible for those costs), such that the Act can easily be said to be meaningfully connected to the province" - See paragraph 37.

Constitutional Law - Topic 6753

Provincial jurisdiction (s. 92) - General principles - Territorial limitation - The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, authorized an action by the government of British Columbia against tobacco manufacturers for recovery of health care expenditures incurred by the government to treat tobacco related diseases - The Supreme Court of Canada held that the Act was not invalid by reason of extra-territoriality, being in pith and substance legislation in relation to "property and civil rights in the province" under s. 92(13) of the Constitution Act, 1867 - The court stated that "The Act respects the legislative sovereignty of other jurisdictions. Though the cause of action that is its pith and substance may capture, to some extent, activities occurring outside of British Columbia, no territory could possibly assert a stronger relationship to that cause of action than British Columbia. That is because there is at all times one critical connection to British Columbia exclusively: the recovery permitted by the action is in relation to expenditures by the government of British Columbia for the health care of British Columbians" - See paragraph 38.

Constitutional Law - Topic 6753

Provincial jurisdiction (s. 92) - General principles - Territorial limitation - The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, authorized an action by the government of British Columbia against tobacco manufacturers for recovery of health care expenditures incurred by the government to treat tobacco related diseases - At issue in several appeals was whether the Act was ultra vires the provincial legislature by reason of extra-territoriality - The Supreme Court of Canada stated that in assessing this issue, the appellants and the Court of Appeal had placed undue emphasis on the question of whether the breach of duty by a manufacturer had to occur in British Columbia - The driving force of the Act's cause of action was compensation for the government of British Columbia's health care costs, not remediation of tobacco manufacturers' breaches of duty - While the existence of a breach of duty was one of several necessary conditions to a manufacturer's liability to the government, it was not the mischief at which the cause of action created by the Act was aimed - Secondly, the only relevant breaches under the Act were breaches of duties owed to persons in British Columbia that gave rise to health care expenditures by the government of British Columbia - Therefore, even if the existence of a breach of duty were the central element of the Act's cause of action, the cause of action would remain strongly related to British Columbia - See paragraphs 39 to 41.

Constitutional Law - Topic 6753

Provincial jurisdiction (s. 92) - General principles - Territorial limitation - The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, authorized an action by the government of British Columbia against tobacco manufacturers for recovery of health care expenditures incurred by the government to treat tobacco related diseases - At issue in several appeals was, inter alia, whether the Act was ultra vires the provincial legislature by reason of extra-territoriality - The Supreme Court of Canada stated that in assessing the Act's respect for the territorial limitations on British Columbia's legislative competence, the appellants and the Court of Appeal had placed undue emphasis on the question of whether the breach of duty by a manufacturer, which was a necessary condition of its liability under the cause of action created by the Act, had to occur in British Columbia - The court further stated that "The question of whether other matters, such as exposure and disease, to which the Act refers, must occur or arise in British Columbia is equally or more irrelevant to the Act's validity. Those matters too are conditions precedent to success in an action brought pursuant to the Act and of subsidiary significance to it" - See paragraph 41.

Constitutional Law - Topic 6753

Provincial jurisdiction (s. 92) - General principles - Territorial limitation - The Supreme Court of Canada stated that "several analytical steps may be required to determine whether provincial legislation in pith and substance respects territorial limits on provincial legislative competence. The first step is to determine the pith and substance, or dominant feature, of the impugned legislation, and to identify a provincial head of power under which it might fall. Assuming a suitable head of power can be found, the second step is to determine whether the pith and substance respects the territorial limitations on that head of power - i.e. whether it is in the province. If the pith and substance is tangible, whether it is in the province is simply a question of its physical location. If the pith and substance is intangible, the court must look to the relationships among the enacting territory, the subject matter of the legislation and the persons made subject to it, in order to determine whether the legislation, if allowed to stand, would respect the dual purposes of the territorial limitations in s. 92 (namely, to ensure that provincial legislation has a meaningful connection to the enacting province and pays respect to the legislative sovereignty of other territories). If it would, the pith and substance of the legislation should be regarded as situated in the province" - See paragraph 36.

Constitutional Law - Topic 7364

Provincial jurisdiction (s. 92) - Property and civil rights - Particular matters - Legislation re recovery of damages from tobacco manufacturers - [See first and second Constitutional Law - Topic 6753 ].

Constitutional Law - Topic 8655

Judges (incl. justices of the peace) - Independence - The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, authorized an action by the government of British Columbia against tobacco manufacturers for recovery of health care expenditures incurred by the government to treat tobacco related diseases - The government of British Columbia brought an action against the appellants under the Act - The appellants argued that the Act violated judicial independence because it contained rules of civil procedure that fundamentally interfered with the adjudicative role of the court hearing an action brought pursuant to the Act - The Supreme Court of Canada stated that "the appellants' arguments misapprehend the nature and scope of the courts' adjudicative role protected from interference by the Constitution's guarantee of judicial independence ... None of this is to say that legislation, being law, can never unconstitutionally interfere with courts' adjudicative role. But more is required than an allegation that the content of the legislation required to be applied by that adjudicative role is irrational or unfair, or prescribes rules different from those developed at common law. The legislation must interfere, or be reasonably seen to interfere, with the courts' adjudicative role, or with the essential conditions of judicial independence" - See paragraphs 48 to 54.

Constitutional Law - Topic 8655

Judges (incl. justices of the peace) - Independence - The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, authorized an action by the government of British Columbia against tobacco manufacturers for recovery of health care expenditures incurred by the government to treat tobacco related diseases - The government of British Columbia brought an action against the appellants under the Act - The appellants argued that the Act violated judicial independence because it contained rules of civil procedure that fundamentally interfered with the adjudicative role of the court hearing an action brought pursuant to the Act - The Supreme Court of Canada held that the Act did not violate judicial independence - The court stated that "A court called upon to try an action brought pursuant to the Act retains at all times its adjudicative role and the ability to exercise that role without interference ... The fact that the Act shifts certain onuses of proof or limits the compellability of information that the appellants assert is relevant does not in any way interfere, in either appearance or fact, with the court's adjudicative role or any of the essential conditions of judicial independence. Judicial independence can abide unconventional rules of civil procedure and evidence" - See paragraph 55.

Courts - Topic 308

Judges - Independence of judiciary - What constitutes interference with - [See both Constitutional Law - Topic 8655 ].

Health - Topic 1213

Public health legislation - Health care cost recovery schemes - Tobacco damages - [See fourth and sixth Constitutional Law - Topic 5.3 , first, second, third and fourth Constitutional Law - Topic 6753 and both Constitutional Law - Topic 8655 ].

Health - Topic 1213

Public health legislation - Health care cost recovery schemes - Tobacco damages - The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, provided for an action by the government of British Columbia against tobacco manufacturers to recover the cost of health care benefits expended to treat tobacco related disease - The Supreme Court of Canada summarized the essential aspects of the Act - See paragraphs 4 to 14.

Statutes - Topic 6741

Operation and effect - Commencement, duration and repeal - Prospective enactments - General - [See sixth Constitutional Law - Topic 5.3 ].

Cases Noticed:

JTI-MacDonald Corp. v. British Columbia (Attorney General), [2000] B.C.T.C. 178; 74 B.C.L.R.(3d) 149; 184 D.L.R.(4th) 335; 2000 BCSC 312, refd to. [para. 15].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 27].

Hunt v. Lac d'Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 27].

Hunt v. T & N plc - see Hunt v. Lac d'Amiante du Québec Ltée et al.

Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63; 306 N.R. 201; 176 O.A.C. 1; 2003 SCC 40, refd to. [para. 27].

Upper Churchill Water Rights Reversion Act, 1980, Re; Churchill Falls (Labrador) Corp. et al. v. Newfoundland (Attorney General) et al., [1984] 1 S.C.R. 297; 53 N.R. 268; 47 Nfld. & P.E.I.R. 125; 139 A.P.R. 125, consd. [para. 28].

Reference Re Upper Churchill Water Rights Reversion Act - see Upper Churchill Water Rights Reversion Act, 1980, Re.

Global Securities Corp. v. British Columbia Securities Commission et al., [2000] 1 S.C.R. 494; 252 N.R. 290; 134 B.C.A.C. 207; 219 W.A.C. 207; 2000 SCC 21, refd to. [para. 28].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 29].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [para. 29].

Fédération des producteurs volailles du Québec et al. v. Pelland, [2005] 1 S.C.R. 292; 332 N.R. 201; 2005 SCC 20, refd to. [para. 29].

City National Leasing Ltd. v. General Motors of Canada Ltd., [1989] 1 S.C.R. 641; 93 N.R. 326; 32 O.A.C. 332, refd to. [para. 32].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 44].

Ell et al. v. Alberta, [2003] 1 S.C.R. 857; 306 N.R. 1; 330 A.R. 201; 299 W.A.C. 201; 2003 SCC 35, refd to. [para. 44].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 35; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 44].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 45].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

MacKeigan, J.A. et al. v. Royal Commission (Marshall Inquiry), [1989] 2 S.C.R. 796; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1, refd to. [para. 45].

MacKeigan v. Hickman - see MacKeigan, J.A. et al. v. Royal Commission (Marshall Inquiry).

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 45].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1, refd to. [para. 45].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 45].

R. v. Lippé - see Lippé et autres v. Québec (Procureur général) et autres.

Babcock et al. v. Canada (Attorney General) et al., [2002] 3 S.C.R. 3; 289 N.R. 341; 168 B.C.A.C. 50; 275 W.A.C. 50; 2002 SCC 57, refd to. [para. 45].

New Brunswick Provincial Court Judges' Association et al. v. New Brunswick (Minister of Justice) (2005), 336 N.R. 201; 367 A.R. 300; 346 W.A.C. 300; 201 O.A.C. 293; 288 N.B.R.(2d) 202; 751 A.P.R. 202; 2005 SCC 44, refd to. [para. 46].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125; 68 C.C.C.(3d) 289, refd to. [para. 51].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para. 51].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 52].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 57].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 57].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 57].

Singh v. Canada (Attorney General), [2000] 3 F.C. 185; 251 N.R. 318 (F.C.A.), refd to. [para. 62].

Bacon et al. v. Saskatchewan Crop Insurance Corp. et al. (1999), 180 Sask.R. 20; 205 W.A.C. 20 (C.A.), refd to. [para. 66].

Air Canada and Pacific Western Airlines Ltd. v. British Columbia, [1989] 1 S.C.R. 1161; 95 N.R. 1, appld. [para. 70].

Cusson v. Robidoux, [1977] 1 S.C.R. 650; 10 N.R. 592, refd to. [para. 70].

Patry v. Notre-Dame Hospital, [1975] 2 S.C.R. 388; 10 N.R. 575, refd to. [para. 70].

Landgraf v. USI Film Products (1994), 511 U.S. 244, refd to. [para. 71].

National Westminster Bank plc v. Spectrum Plus Ltd. et al., [2005] 3 W.L.R. 58; 338 N.R. 201; [2005] UKHL 41, refd to. [para. 72].

Spectrum Plus Ltd., In re - see National Westminster Bank plc v. Spectrum Plus Ltd. et al.

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, appld. [para. 75].

Statutes Noticed:

Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30 [Appendix].

Authors and Works Noticed:

British Columbia, Hansard, Debates of the Legislative Assembly, vol. 20, No. 6, 4th sess., 36th Parliament (June 7, 2000), p. 16314 [para. 16].

Edinger, Elizabeth, Retrospectivity in Law (1995), 29 U.B.C. L. Rev. 5, p. 13 [para. 71].

Elliot, Robin, References, Structural Argumentation and the Organizing Principles of Canada's Constitution (2001), 80 Can. Bar Rev. 67, pp. 114, 115 [para. 59]; 141, 142 [para. 66].

Hansard (B.C.) - see British Columbia, Hansard, Debates of the Legislative Assembly.

Hogg, Peter W., and Zwibel, Cara F., The Rule of Law in the Supreme Court of Canada (2005), 55 U.T.L.J. 715, pp. 717 [para. 61]; 718 [paras. 61, 66].

Hogg, Peter W., Constitutional Law of Canada (4th Ed. 1997) (2003 Looseleaf Update, Release 1), vol. 1, p. 48-29 [para. 69].

Newman, Warren J., The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation (2005), 16 N.J.C.L. 175, pp. 177 to 180 [para. 61]; 187 [para. 66].

Sullivan, Ruth E., Interpreting the Territorial Limitations on the Provinces (1985), 7 Sup. Ct. L.R. 511, generally [para. 27].

Counsel:

David C. Harris, Q.C., William S. Berardino, Q.C., and Andrea N. MacKay, for the appellant Imperial Tobacco Canada Limited;

Kenneth N. Affleck, Q.C., James A. Macaulay, Q.C., Steven Sofer, Michael Sobkin and Ian G. Christman, for the appellant Rothmans, Benson & Hedges Inc;

Jack M. Giles, Q.C., Jeffrey J. Kay, Q.C., and Dylana R. Bloor, for the appellant JTI-Macdonald Corp;

Written submissions only by Maryanne F. Prohl, for the appellant Canadian Tobacco Manufacturers' Council;

John J.L. Hunter, Q.C., Craig P. Dennis, Matthew J. Westphal, for the appellant British American Tobacco (Investments) Limited;

Simon Potter and Cynthia A. Millar, for the appellants Philip Morris Incorporated and Philip Morris International Inc;

Thomas R. Berger, Q.C., Daniel A. Webster, Q.C., Elliott M. Myers, Q.C., and Craig E. Jones, for the respondents;

Robin K. Basu and Mark Crow, for the intervener the Attorney General of Ontario;

Alain Gingras and Brigitte Bussières, for the intervener the Attorney General of Quebec;

Written submissions only by Edward A. Gores, for the intervener the Attorney General of Nova Scotia;

John G. Furey, for the intervener the Attorney General of New Brunswick;

Eugene B. Szach, for the intervener the Attorney General of Manitoba;

Graeme G. Mitchell, Q.C., and R. James Fyfe, for the intervener the Attorney General for Saskatchewan;

Robert Normey, for the intervener the Attorney General of Alberta;

Donna Ballard and Barbara Barrowman, for the intervener the Attorney General of Newfoundland and Labrador.

Solicitors of Record:

Berardino & Harris, Vancouver, British Columbia, for the appellant Imperial Tobacco Canada Limited;

Macaulay McColl, Vancouver, British Columbia, for the appellant Rothmans, Benson & Hedges Inc.;

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia, for the appellant JTI-Macdonald Corp.;

Kuhn & Company, Vancouver, British Columbia, for the appellant Canadian Tobacco Manufacturers' Council;

Sugden, McFee & Roos, Vancouver, British Columbia, for the appellant British American Tobacco (Investments) Limited;

McCarthy Tétrault, Montreal, Quebec, for the appellants Philip Morris Incorporated and Philip Morris International Inc.;

Bull, Housser & Tupper, Vancouver, British Columbia, for the respondents;

Attorney General of Ontario, Toronto, Ontario, for the intervener the Attorney General of Ontario;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervener the Attorney General of Quebec;

Attorney General of Nova Scotia, Halifax, Nova Scotia, for the intervener the Attorney General of Nova Scotia;

Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervener the Attorney General of New Brunswick;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervener the Attorney General of Manitoba;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener the Attorney General for Saskatchewan;

Attorney General of Alberta, Edmonton, Alberta, for the intervener the Attorney General of Alberta;

Attorney General of Newfoundland and Labrador, St. John's, Newfoundland, for the intervener the Attorney General of Newfoundland and Labrador.

These appeals were heard on June 8, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered by Major, J., in both official languages on September 29, 2005.

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250 practice notes
  • Bhasin v. Hrynew et al., (2014) 584 A.R. 6
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • February 12, 2014
    ...280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 40]. British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397......
  • Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13
    • Canada
    • Supreme Court (Canada)
    • June 12, 2020
    ...SCC 13 , [2002] 1 S.C.R. 405 ; Reference re Secession of Quebec, [1998] 2 S.C.R. 217 ; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 ; Caron v. Alberta, 2015 SCC 56 , [2015] 3 S.C.R. 511 ; Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1 , [2......
  • Canadian Western Bank et al. v. Alberta, (2007) 362 N.R. 111 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • May 31, 2007
    ...; 134 B.C.A.C. 207 ; 219 W.A.C. 207 ; 2000 SCC 21 , refd to. [para. 28]. British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129 ; 218 B.C.A.C. 1 ; 359 W.A.C. 1 ; 2005 SCC 49 , refd to. [para. 28]. City National Leasing Ltd. v. General Motors of Can......
  • Bhasin v. Hrynew, [2014] 3 SCR 494
    • Canada
    • Supreme Court (Canada)
    • November 13, 2014
    ...Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Interfoto Picture Library Ltd. v. Stiletto Visual Programmes L......
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177 cases
  • Bhasin v. Hrynew et al., (2014) 584 A.R. 6
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • February 12, 2014
    ...280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 40]. British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397......
  • Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13
    • Canada
    • Supreme Court (Canada)
    • June 12, 2020
    ...SCC 13 , [2002] 1 S.C.R. 405 ; Reference re Secession of Quebec, [1998] 2 S.C.R. 217 ; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 ; Caron v. Alberta, 2015 SCC 56 , [2015] 3 S.C.R. 511 ; Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1 , [2......
  • Canadian Western Bank et al. v. Alberta, (2007) 362 N.R. 111 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • May 31, 2007
    ...; 134 B.C.A.C. 207 ; 219 W.A.C. 207 ; 2000 SCC 21 , refd to. [para. 28]. British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129 ; 218 B.C.A.C. 1 ; 359 W.A.C. 1 ; 2005 SCC 49 , refd to. [para. 28]. City National Leasing Ltd. v. General Motors of Can......
  • Bhasin v. Hrynew, [2014] 3 SCR 494
    • Canada
    • Supreme Court (Canada)
    • November 13, 2014
    ...Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Interfoto Picture Library Ltd. v. Stiletto Visual Programmes L......
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6 firm's commentaries
  • Supreme Court Of Canada News
    • Canada
    • Mondaq Canada
    • August 1, 2018
    ...Costs Recovery Act (Act). The constitutionality of the Act had previously been upheld: British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49. On July 13, 2018, the Supreme Court of Canada (SCC) held that BC could not be compelled to produce a collection of anonymized health care datab......
  • Rx IP Update - July 2018
    • Canada
    • JD Supra Canada
    • August 1, 2018
    ...of the Act had previously been upheld: British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49. On July 13, 2018, the Supreme Court of Canada (SCC) held that BC could not be compelled to produce a collection of anonymized health care databases that the province intended to use to prove ......
  • Chipping Away At The A2J Crisis: The SCC’s Decision In Trial Lawyers
    • Canada
    • Mondaq Canada
    • October 28, 2014
    ...Para 6. [8] Para 8; italics added. [9] Paras 16-18, 23. [10] Para 25. [11] Para 26, citing British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473 and Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR [12] Para 29. [13] Para 30. [14] Hryniak v Mauldin, 2014 SCC 7, ......
  • Use Of Employee Non-compete Agreements About To Become Void In Ontario
    • Canada
    • Mondaq Canada
    • October 28, 2021
    ...and the employer ends. 3. H.L. Staebler Company Limited v. Allan, 2008 ONCA 576. 4. British Columbia v Imperial Tobacco Canada Ltd (2005 SCC 49). The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specifico......
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67 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Constitutional Law. Fifth Edition Conclusion
    • August 3, 2017
    ...British Columbia v. Imperial Tobacco, [2005] 2 S.C.R. 473, 257 D.L.R. (4th) 193, 2005 SCC 49 ....................................8, 152, 157, 345−47 Burmah Oil Co. (Burmah Trading) Ltd. v. Lord Advocate (1964), [1965] A.C. 75, [1964] 2 W.L.R. 1231, [1964] 2 All E.R. 348, 109 Sol. J. 401 (H.......
  • Introduction
    • Canada
    • Irwin Books The Canadian Class Action Review Nbr. 3-2, July 2006
    • July 1, 2006
    ...Corp. of British Columbia, [2003] 2 S.C.R. 63 , 2003 SCC 40 ; Beals, above note 19; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49; and Castillo v. Castillo, 2005 SCC 4 1 8 T H E C A N A DI A N CL A SS ACTION RE VIE W fact that certain procedural rights must be afforded to......
  • Unchartered Grounds: Covid-19 and Class Actions
    • Canada
    • Irwin Books The Canadian Class Action Review Nbr. 17-2, March 2022
    • March 1, 2022
    ... 2010 BCCA 63 at para 39. 210 Roncarelli v Duplessis, [1959] SCR 121 at 44. 211 British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49 at para 58. L a R ev ue Ca nadienne des R eCouR s CoLLeCtifs | voLume 17 • no 2 125 breaches during the COVID -19 pandemic, should not receive dama......
  • Fumbling Toward Efficacy: Interjurisdictional Class Actions After Currie V. Mcdonald’s
    • Canada
    • Irwin Books The Canadian Class Action Review Nbr. 3-2, July 2006
    • July 1, 2006
    ...Corp. of British Columbia, [2003] 2 S.C.R. 63 , 2003 SCC 40 ; Beals, above note 19; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49; and Castillo v. Castillo, 2005 SCC 4 1 8 T H E C A N A DI A N CL A SS ACTION RE VIE W fact that certain procedural rights must be afforded to......
  • Request a trial to view additional results

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