British Columbia v. Imperial Tobacco Canada Ltd. et al., (2011) 419 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 24, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 419 N.R. 1 (SCC);2011 SCC 42

B.C. v. Imperial Tobacco Can. Ltd. (2011), 419 N.R. 1 (SCC)

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[French language version follows English language version]

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

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Temp. Cite: [2011] N.R. TBEd. JL.032

Her Majesty The Queen in Right of Canada (appellant/respondent on cross-appeal) v. Imperial Tobacco Canada Limited (respondent/appellant on cross-appeal) and Attorney General of Ontario and Attorney General of British Columbia (intervenors)

Attorney General of Canada (appellant/respondent on cross-appeal) v. Her Majesty The Queen in Right of British Columbia (respondent), Imperial Tobacco Canada Limited, Rothmans, Benson & Hedges Inc., Rothmans Inc., JTI-MacDonald Corp., R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco International Inc., B.A.T. Industries p.l.c., British American Tobacco (Investments) Limited, Carreras Rothmans Limited, Philip Morris USA Inc. and Philip Morris International Inc. (respondents/appellants on cross-appeal) and Attorney General of Ontario, Attorney General of British Columbia, and Her Majesty The Queen in Right of the Province of New Brunswick (intervenors)

(33559, 33563; 2011 SCC 42; 2011 CSC 42)

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

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

July 29, 2011.

Summary:

The Province of British Columbia brought an action against the defendants (the tobacco companies), claiming for the total past expenditure by government for health care benefits and the present value of health care benefits to be provided in the future resulting from tobacco related disease or risk thereof. The tobacco companies filed a third party notice, naming Canada as a third party. The tobacco companies sought contribution and indemnity from Canada. The Attorney General of Canada applied under rule 19(24) of the Rules of Court (B.C.) to strike the third party notices as disclosing no cause of action.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. B48, allowed the application and struck the third party notices. The tobacco companies appealed.

The British Columbia Court of Appeal, Hall and Lowry, JJ.A., dissenting in part, in a decision reported at 280 B.C.A.C. 100; 474 W.A.C. 100, allowed the appeal to the extent of substituting an order striking only the portions of the third party notices relating to the claims of the tobacco companies that (i) they were entitled to contribution and indemnity from Canada on the basis that the Tobacco Damages and Health Costs Recovery Act applied to Canada, (ii) Canada owed the tobacco companies a duty of care with respect to the design of the tobacco strains used in light and mild cigarettes, (iii) Canada was liable in connection with a failure to warn, as alleged in paras. 149 and 150 of the tobacco companies' third party notice, and (iv) the tobacco companies were entitled to be indemnified by Canada on the basis of the doctrine of equitable indemnity.

In another case, Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.). He sought a refund of the monies expended to purchase the cigarettes. Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members). Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. D68, allowed the application and struck the third party notice. Imperial appealed.

The British Columbia Court of Appeal, Hall and Lowry, JJ.A., dissenting, in a decision reported at 280 B.C.A.C. 160; 474 W.A.C. 160, allowed the appeal in part by substituting an order striking only the portions of the amended third party notice relating to the claims of Imperial that (i) it was entitled to contribution and indemnity from Canada on the basis that the Trade Practice Act and Business Practices and Consumer Protection Act applied to Canada, (ii) Canada owed it a duty of care with respect to the design of the tobacco strains used in light and mild cigarettes, and (iii) it was entitled to be indemnified by Canada on the basis of the doctrine of equitable indemnity.

Canada appealed the findings that the claims for negligent misrepresentation and the claim for negligent design should be allowed to go to trial. The tobacco companies cross-appealed the striking of the other claims.

The Supreme Court of Canada allowed the appeals and dismissed the cross-appeals. All claims of the tobacco companies brought against the government of Canada were bound to fail and were struck.

Consumer Law - Topic 5

General - Application of consumer protection legislation - [See Torts - Topic 4261 ].

Crown - Topic 1576

Torts by and against Crown - Negligence by Crown - Negligent advice or misrepresentation - Tobacco companies defended claims by (a) the British Columbia government for recovery of health care costs and (b) Knight, who had alleged deceptive acts - The tobacco companies third partied Canada, alleging that Canada negligently misrepresented the health attributes of low-tar cigarettes to consumers and the tobacco companies - The Supreme Court of Canada, on appeal, struck the third party claim - Two types of negligent misrepresentation claims were at issue - First, in the Knight case, Imperial alleged that Canada negligently misrepresented the health attributes of low-tar cigarettes to consumers, and was therefore liable for contribution and indemnity on the basis of the Negligence Act if the class members were successful - Second, in both cases before the Court, Imperial and the other tobacco companies alleged that Canada made negligent misrepresentations to the tobacco companies, and that Canada was liable for any losses that the tobacco companies incurred to the plaintiffs in either case - On the facts pleaded, Canada did not owe a prima facie duty of care to consumers, but did owe a prima facie duty to the tobacco companies - However, the court struck the negligent misrepresentation claims in both cases as a result of stage-two policy concerns about interfering with government policy decisions and the prospect of indeterminate liability - See paragraphs 32 to 102.

Crown - Topic 1576

Torts by and against Crown - Negligence by Crown - Negligent advice or misrepresentation - Tobacco companies defended claims by (a) the British Columbia government for recovery of health care costs and (b) Knight, who had alleged deceptive acts - The tobacco companies third partied Canada, alleging that Canada negligently misrepresented the health attributes of low-tar cigarettes to consumers and the tobacco companies - The Supreme Court of Canada stated that "[t]he first question is whether the facts as pleaded bring Canada's relationships with consumers and the tobacco companies within a settled category that gives rise to a duty of care. If they do, a prima facie duty of care will be established. ... However, it is important to note that liability for negligent misrepresentation depends on the nature of the relationship between the plaintiff and defendant ... . The question is not whether negligent misrepresentation is a recognized tort, but whether there is a reasonable prospect that the relationship alleged in the pleadings will give rise to liability for negligent misrepresentation." - See paragraph 37.

Crown - Topic 1576

Torts by and against Crown - Negligence by Crown - Negligent advice or misrepresentation - Tobacco companies defended claims by (a) the British Columbia government for recovery of health care costs and (b) Knight, who had alleged deceptive acts - The tobacco companies third partied Canada, alleging that Canada negligently misrepresented the health attributes of low-tar cigarettes to consumers and the tobacco companies - The Supreme Court of Canada stated that "the facts pleaded do not bring either claim within a settled category of negligent misrepresentation. The law of negligent misrepresentation has thus far not recognized liability in the kinds of relationships at issue in these cases. The error of the tobacco companies lies in assuming that the relationships disclosed by the pleadings between Canada and the tobacco companies on the one hand and between Canada and consumers on the other are like other relationships that have been held to give rise to liability for negligent misrepresentation. In fact, they differ in important ways. It is sufficient at this point to note that the tobacco companies have not been able to point to any case where a government has been held liable in negligent misrepresentation for statements made to an industry." - See paragraph 38.

Crown - Topic 1576

Torts by and against Crown - Negligence by Crown - Negligent advice or misrepresentation - Tobacco companies defended claims by (a) the British Columbia government for recovery of health care costs and (b) Knight, who had alleged deceptive acts - The tobacco companies third partied Canada, alleging that Canada negligently misrepresented the health attributes of low-tar cigarettes to consumers and the tobacco companies - The Supreme Court of Canada applied the test set out by Anns v. Merton London Borough Council (H.L., 1978) - At the first stage of this test, the question was whether the facts disclosed a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff - On the facts pleaded, Canada did not owe a prima facie duty of care to consumers, but did owe a prima facie duty to the tobacco companies - The facts pleaded established no direct relationship between Canada and the consumers of light cigarettes - The relationship between the two was limited to Canada's statements to the general public that low-tar cigarettes were less hazardous - There were no specific interactions between Canada and the class members - Consequently, a finding of proximity in this relationship had to arise from the governing statutes - The relevant statutes established only general duties to the public, and no private law duties to consumers - What was alleged with respect to Canada's interactions with the manufacturers went far beyond the sort of statements made by Canada to the public at large - Canada was alleged to have had specific interactions with the manufacturers in contrast to the absence of such specific interactions between Canada and the public - Canada's regulatory powers over the manufacturers, coupled with its specific advice and its commercial involvement, could be seen as supporting a conclusion that reliance was reasonable - Consequently, the claims between the tobacco companies and Canada should not be struck out at the first stage of the analysis - The pleadings, assuming them to be true, disclosed a prima facie duty of care in negligent misrepresentation - However, the facts as pleaded did not show a relationship between Canada and consumers that would give rise to a duty of care - That claim should accordingly be struck at this stage of the analysis - See paragraphs 40 to 61.

Crown - Topic 1576

Torts by and against Crown - Negligence by Crown - Negligent advice or misrepresentation - Tobacco companies defended claims by (a) the British Columbia government for recovery of health care costs and (b) Knight, who had alleged deceptive acts - The tobacco companies third partied Canada, alleging that Canada negligently misrepresented the health attributes of low-tar cigarettes to consumers and the tobacco companies - The Supreme Court of Canada applied the test set out by Anns v. Merton London Borough Council (H.L., 1978) - The second stage of this test asked whether there were policy reasons why a prima facie duty of care should not be recognized - The Supreme Court of Canada accepted Canada's submission that its alleged negligent misrepresentations to the tobacco industry should not give rise to tort liability because of stage-two policy considerations - First, the alleged statements were protected expressions of government policy - The representations on which the third-party claims relied were part and parcel of a government policy to encourage people who continued to smoke to switch to low-tar cigarettes - This was a "true" or "core" policy, in the sense of a course or principle of action that the government adopted - The government's alleged course of action was adopted at the highest level in the Canadian government, and involved social and economic considerations - Canada developed this policy out of concern for the health of Canadians and the individual and institutional costs associated with tobacco-related disease - Second, recognizing a duty of care would expose Canada to indeterminate liability - Insofar as the claims were based on representations to consumers, Canada had no control over the number of people who smoked light cigarettes - Insofar as the claims were based on representations to the tobacco companies, they were at first blush more circumscribed - However, recognizing a duty of care for representations to the tobacco companies would effectively amount to a duty to consumers, since the quantum of damages owed to the companies in both cases would depend on the number of smokers and the number of cigarettes sold - This was a flow-through claim of negligent misrepresentation, where the tobacco companies were passing along their potential liability to consumers and to the province of British Columbia - In both cases, Canada was not in control of the extent of its potential liability - See paragraphs 62 to 102.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - [See all Crown - Topic 1576 ].

Guarantee and Indemnity - Topic 7028

Indemnity - How right arises - Equity - Tobacco companies defended claims by (a) the British Columbia government for recovery of health care costs and (b) Knight, who had alleged deceptive acts - The tobacco companies third partied Canada, alleging that Canada misrepresented the health attributes of low-tar cigarettes to consumers and the tobacco companies and was liable for contribution and indemnity under the common law principle of equitable indemnity - They submitted that whenever a person requested or directed another person to do something that caused the other to incur liability, the requesting or directing person was liable to indemnify the other for its liability - The Supreme Court of Canada affirmed the decision to strike the third party claim - The court stated that "[e]quitable indemnity is a narrow doctrine, confined to situations of an express or implied understanding that a principal will indemnify its agent for acting on the directions given. ... claims of equitable indemnity 'proceed upon the notion of a request which one person makes under circumstances from which the law implies that both parties understand that the person who acts upon the request is to be indemnified if he does so'" - The court agreed with the Court of Appeal that "[w]hen Canada directed the tobacco industry about how it should conduct itself, it was doing so in its capacity as a government regulator that was concerned about the health of Canadians. Under such circumstances, it is unreasonable to infer that Canada was implicitly promising to indemnify the industry for acting on its request." - See paragraphs 146 to 148.

Health - Topic 1213

Public health legislation - Health care cost recovery schemes - Tobacco damages - Tobacco companies defended claims by (a) the British Columbia government for recovery of health care costs and (b) Knight, who had alleged deceptive acts - The tobacco companies third partied Canada, alleging that Canada misrepresented the health attributes of low-tar cigarettes to consumers and the tobacco companies and was liable for contribution and indemnity under the Negligence Act because it breached a duty to consumers of tobacco products - The Supreme Court of Canada affirmed the decision to strike the third party claim - The court agreed with Canada and the Court of Appeal that a third party could only be liable for contribution under the Negligence Act if it was directly liable to the plaintiff - It was plain and obvious that the private law claims against Canada that arose from an alleged duty of care to consumers had to be struck - Even if Canada breached duties to smokers, this would have no effect on whether it was liable to British Columbia, the plaintiff - See paragraphs 27 to 31.

Health - Topic 1213

Public health legislation - Health care cost recovery schemes - Tobacco damages - Tobacco companies defended claims by (a) the British Columbia government for recovery of health care costs and (b) Knight, who had alleged deceptive acts - The tobacco companies third partied Canada, alleging that Canada negligently misrepresented the health attributes of low-tar cigarettes to consumers and the tobacco companies - The tobacco companies submitted that the Court of Appeal erred when it held that it was plain and obvious that Canada could not qualify as a manufacturer under s. 1 of the Tobacco Damages and Health Care Costs Recovery Act (2000) (CRA) - In the alternative, the tobacco companies alleged that Canada was liable under the Health Care Costs Recovery Act (2008) (HCCRA), which created a cause of action for the province to recover health care costs generally from wrongdoers (s. 8) - The Supreme Court of Canada affirmed the decision to strike the third party claim - The tobacco companies could not rely on the HCCRA in a CRA action for contribution - While it was true that Canada was incapable of committing a tobacco-related wrong itself if it was not a manufacturer, the underlying cause of action was that it was the tobacco companies who were alleged to have committed a tobacco-related wrong - The HCCRA specified that it did not apply in cases "arising out of a tobacco related wrong as defined in the Tobacco Damages and Health Care Costs Recovery Act" (s. 24(3)(b)) - This precluded contribution claims arising out of that Act - See paragraphs 133 and 134.

Health - Topic 1213

Public health legislation - Health care cost recovery schemes - Tobacco damages - [See all Crown - Topic 1576 , Guarantee and Indemnity - Topic 7028 , Torts - Topic 86 and both Torts - Topic 4332 ].

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - [See first Crown - Topic 1576 , Guarantee and Indemnity - Topic 7028 , first and second Health - Topic 1213 , Torts - Topic 86 , Torts - Topic 4261 and both Torts - Topic 4332 ].

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - The Supreme Court of Canada stated that "[t]he power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial. This promotes two goods - efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be - on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties' respective positions on those issues and the merits of the case." - See paragraphs 19 and 20.

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - The Supreme Court of Canada stated that "[v]aluable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. ... The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions ... . Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial." - See paragraph 21.

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - The Supreme Court of Canada stated that "[a] motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven ... . No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the Supreme Court Civil Rules). It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted." - See paragraph 22.

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - The Supreme Court of Canada stated that "[t]he judge on a motion to strike asks if the claim has any reasonable prospect of success. In the world of abstract speculation, there is a mathematical chance that any number of things might happen. That is not what the test on a motion to strike seeks to determine. Rather, it operates on the assumption that the claim will proceed through the court system in the usual way - in an adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent. The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding." - See paragraph 25.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See first, second, third and fourth Crown - Topic 1576 ].

Torts - Topic 78

Negligence - Duty of care - Effect of statutory or policy precautions or safeguards on the scope of the duty of care - [See fifth Crown - Topic 1576 ].

Torts - Topic 86

Negligence - Duty of care - Duty to warn - Tobacco companies defended claims by (a) the British Columbia government for recovery of health care costs and (b) Knight, who had alleged deceptive acts - The tobacco companies third partied Canada, alleging that Canada misrepresented the health attributes of low-tar cigarettes to consumers and the tobacco companies - The tobacco companies made two allegations of failure to warn: (1) that Canada directed the tobacco companies not to provide warnings on cigarette packages (the labelling claim) about the health hazards of cigarettes; and (2) that Canada failed to warn the tobacco companies about the dangers posed by the strains of tobacco designed and licensed by Canada - The Supreme Court of Canada affirmed the decision to strike the third party claims - The pleadings were not sufficient to raise a claim of duty to warn - Even if they did, the claims failed as a result of stage-two policy concerns about interfering with government policy decisions and the prospect of indeterminate liability - See paragraphs 103 to 109.

Torts - Topic 4261

Suppliers of goods - Duties of suppliers - General - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act (TPA) and the Business Practices and Consumer Protection Act (B.C.) (BPCPA) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, naming Canada as a third party - The Supreme Court of Canada affirmed the decision to strike the third party claim - Canada could not qualify as a "supplier" under the Acts on the facts pled - The definitions of "supplier" in both Acts referred to "consumer transaction[s]", and contrast suppliers, who had to have a commercial purpose, with consumers - It was plain and obvious from the facts pleaded that Canada did not promote the use of low-tar cigarettes for a commercial purpose, but for a health purpose - Canada was therefore not a supplier under the TPA or the BPCPA, and the contribution claim based on this ground should be struck - See paragraphs 140 to 145.

Torts - Topic 4332

Suppliers of goods - Negligence - Manufacturers - Defective design or manufacture - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada breached its duty to tobacco companies and consumers of light and mild cigarettes when it negligently designed its strains of low-tar tobacco - The Supreme Court of Canada affirmed the decision to strike the third party claims - The claims for negligent design established that Canada owed a prima facie duty of care towards the tobacco companies with respect to its design of low-tar tobacco strains, but failed at the second stage of the analysis because they related to core government policy decisions - See paragraphs 110 to 116.

Torts - Topic 4332

Suppliers of goods - Negligence - Manufacturers - Defective design or manufacture - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice naming Canada as a third party - The tobacco companies submitted that the Court of Appeal erred when it held that it was plain and obvious that Canada could not qualify as a manufacturer under s. 1 of the Tobacco Damages and Health Care Costs Recovery Act (2000) (CRA) - The Supreme Court of Canada affirmed the decision to strike the third party claims - Canada was not a manufacturer under the CRA - Holding Canada accountable under the CRA would defeat the legislature's intention of transferring the health-care costs resulting from tobacco related wrongs from taxpayers to the tobacco industry - It was true that s. 1 had to be read disjunctively, and that an individual would qualify as a manufacturer if it met any of the four definitions in (a) to (d) - However, the CRA had to nevertheless be read purposively and as a whole - A proper reading of the CRA would therefore take each of the four definitions into account - It would also consider the rest of the statutory scheme, and the legislative context - When the CRA was read in this way, it as clear that the B.C. legislature did not intend to include the federal government as a potential manufacturer under the CRA - See paragraphs 117 to 132.

Cases Noticed:

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 17].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 17].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 17].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 17].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 21].

Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), refd to. [para. 21].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 22].

Giffels Associates Ltd. v. Eastern Construction Co. et al., [1978] 2 S.C.R. 1346; 19 N.R. 298, refd to. [para. 29].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 37].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 38].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 38].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 39].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241, refd to. [para. 42].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 42].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 42].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 44].

Heaslip Estate v. Mansfield Ski Club Inc. et al. (2009), 252 O.A.C. 1; 96 O.R.(3d) 401; 2009 ONCA 594, refd to. [para. 45].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 276 D.L.R.(4th) 411 (C.A.), refd to. [para. 50].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 63].

Home Office v. Dorset Yachts Co., [1970] 2 W.L.R. 1140 (H.L.), refd to. [para. 73].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 74].

Swinamer v. Nova Scotia (Attorney General) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 74].

Lewis et al. v. British Columbia, [1997] 3 S.C.R. 1145; 220 N.R. 81; 98 B.C.A.C. 168; 161 W.A.C. 168, refd to. [para. 74].

X (minors) v. Bedforshire County Council - see P1 et al. v. Bedfordshire County Council.

P1 et al. v. Bedfordshire County Council, [1995] 3 All E.R. 353; 185 N.R. 173 (H.L.), refd to. [para. 79].

Stovin v. Wise - see Stovin et al. v. Norfolk County Council.

Stovin et al. v. Norfolk County Council, [1996] A.C. 932; 202 N.R. 290 (H.L.), refd to. [para. 79].

Barrett v. London Borough of Enfield, [2001] 2 A.C. 550; 243 N.R. 247 (H.L.), refd to. [para. 79].

Sutherland Shire Council v. Heyman (1985), 157 C.L.R. 424 (Aust. H.C.), refd to. [para. 80].

Pyrenees Shire Council v. Day, [1998] HCA 3; 192 C.L.R. 330, refd to. [para. 80].

Office of Personnel Management v. Richmond (1990), 496 U.S. 414 (S.C.), refd to. [para. 82].

United States of America v. Neustadt (1961), 366 U.S. 696 (S.C.), refd to. [para. 81].

Dalehite v. United States of America (1953), 346 U.S. 15 (S.C.), refd to. [para. 82].

United States of America v. Gaubert (1991), 499 U.S. 315 (S.C.), refd to. [para. 82].

Berkovitz v. United States of America (1988), 486 U.S. 531 (S.C.), refd to. [para. 82].

United States of America v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) (1984), 467 U.S. 797 (S.C.), refd to. [para. 82].

Design Services Ltd. et al. v. Canada, [2008] 1 S.C.R. 737; 374 N.R. 77; 2008 SCC 22, refd to. [para. 100].

Day v. Central Okanagan (Regional District) et al., [2000] B.C.T.C. 527; 79 B.C.L.R.(3d) 36; 2000 BCSC 1134, refd to. [para. 108].

Elias v. Headache and Pain Management Clinic et al., [2008] O.T.C. Uned. K73; 2008 CanLII 53133 (Sup. Ct.), refd to. [para. 108].

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. 129].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 138].

Parmley v. Parmley, [1945] S.C.R. 635, refd to. [para. 147].

Birmingham & District Land Co. v. London and North Western Railway Co. (1886), 34 Ch. D. 261 (C.A.), refd to. [para. 147].

Statutes Noticed:

Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, sect. 1 [para. 118].

Authors and Works Noticed:

British Columbia, Hansard, Debates of the Legislative Assembly, vol. 20, 4th Sess., 36th Parliament (June 7, 2000), p. 16314 [para. 127].

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

Counsel:

John S. Tyhurst, Paul Vickery and Travis Henderson, for the appellant/respondent on cross-appeal, Her Majesty the Queen in Right of Canada (33559);

Paul Vickery, John S. Tyhurst and Travis Henderson, for the appellant/respondent on cross-appeal, the Attorney General of Canada (33563);

Deborah Glendining and Nada Khirdaji, for the respondent/appellant on cross-appeal, Imperial Tobacco Canada Limited (33559);

Ryan D.W. Dalziel and Daniel A. Webster, Q.C., for the respondent, Her Majesty the Queen in Right of British Columbia (33563);

John J.L. Hunter, Q.C., and Brent B. Olthuis, for the respondent/appellant on cross-appeal, Imperial Tobacco Canada Limited (33563);

Written submissions only by Kenneth N. Affleck, Q.C., for the respondents/appellants on cross-appeal, Rothmans, Benson & Hedges Inc. and Rothmans Inc. (33563);

Written submissions only by Jeffrey J. Kay, Q.C., for the respondents/appellants on cross-appeal, JTI-MacDonald Corp., R.J. Reynolds Tobacco Company and R.J. Reynolds Tobacco International Inc. (33563);

Written submissions only by Craig P. Dennis and Michael D. Shirreff, for the respondents/appellants on cross-appeal, B.A.T. Industries p.l.c. and British American Tobacco (Investments) Limited (33563);

Written submissions only by Christopher M. Rusnak, for the respondent/appellant on cross-appeal, Carreras Rothmans Limited (33563);

Written submissions only by D. Ross Clark, for the respondent/appellant on cross-appeal, Philip Morris U.S.A. Inc. (33563);

Simon V. Potter, Michael A. Feder and Angela M. Juba, for the respondent/appellant on cross-appeal, Philip Morris International Inc. (33563);

Malliha Wilson and Lynne McArdle, for the intervenor, the Attorney General of Ontario (33559-33563);

Jeffrey S. Leon, Robyn M. Ryan Bell and Michael A. Eizenga, for the intervenor, Her Majesty the Queen in Right of New Brunswick (33563);

Nancy Brown, for the intervenor, the Attorney General of British Columbia (33559-33563).

Solicitors of Record:

Attorney General of Canada, Ottawa, Ontario, for the appellants/respondents on cross-appeal (33559-33563);

Hunter Litigation Chambers Law Corporation, Vancouver, B.C., for the respondent/ appellant on cross-appeal, Imperial Tobacco Canada Limited (33559);

Bull, Housser & Tupper, Vancouver, B.C., for the respondent, Her Majesty the Queen in Right of British Columbia (33563);

Osler, Hoskin & Harcourt, Toronto, Ontario, for the respondent/appellant on cross-appeal, Imperial Tobacco Canada Limited (33563);

Affleck Hira Burgoyne, Vancouver, B.C., for the respondents/appellants on cross-appeal, Rothmans, Benson & Hedges Inc. and Rothmans Inc. (33563);

Farris, Vaughan, Willis & Murphy, Vancouver, B.C., for the respondents/appellants on cross-appeal, JTI-MacDonald Corp., R.J. Reynolds Tobacco Company and R.J. Reynolds Tobacco International Inc. (33563);

Sugden, McFee & Roos, Vancouver, B.C., for the respondents/appellants on cross-appeal, B.A.T. Industries p.l.c. and British American Tobacco (Investments) Limited (33563);

Harper Grey, Vancouver, B.C., for the respondent/appellant on cross-appeal, Carreras Rothmans Limited (33563);

Davis & Company, Vancouver, B.C., for the respondent/appellant on cross-appeal, Philip Morris U.S.A. Inc. (33563);

McCarthy Tétrault, Montréal, Quebec, for the respondent/appellant on cross-appeal, Philip Morris International Inc. (33563);

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario (33559-33563);

Bennett Jones, Toronto, Ontario, for the intervenor, Her Majesty the Queen in Right of New Brunswick (33563);

Attorney General of British Columbia, Victoria, B.C., for the intervenor, the Attorney General of British Columbia (33559-33563).

These appeals and cross-appeals were heard on February 24, 2011, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by McLachlin, C.J.C., on July 29, 2011.