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With B.C.'s Bill 12 on pause, what happens next?

Province says it will revisit public-harm bill if other online safety efforts don’t succeed.
Jairo Yunis is the director of provincial affairs and Western economic policy at the Canadian Federation of Independent Business

The B.C. government announced late last month that it will put its Bill 12 public-harm legislation on hold, a decision that was applauded by a significant portion of the province’s business community.

Business groups such as the Canadian Federation of Independent Business (CFIB) and the Greater Vancouver Board of Trade (GVBOT) have asked government to remove the bill from its docket.

When the province first introduced the Public Health Accountability and Cost Recovery Act in March, it likely didn’t expect that a piece of legislation described as measures to protect British Columbians from online harm would receive strong pushback from business leaders and advocacy groups.

Twenty-three business organizations in B.C. and Canada signed a joint letter to express their concerns about the bill, and several major law firms published analyses about the legal risks the bill could pose to B.C. businesses.

“We’re happy that the attorney general and the premier decided to pause the bill. Hopefully, it doesn’t come back in the next legislature.… We want the bill to be completely repealed,” said Jairo Yunis, CFIB’s director of provincial affairs and Western economic policy.

A tragedy propelled the introduction of Bill 12, according to the B.C. government. Last October, Carson Cleland, a 12-year-old Prince George boy, took his life after being sexually extorted online.

“Premier Eby made a promise to Carson’s parents that his government would find ways to make sure Carson left behind a legacy that will help protect other young people,” said the B.C. government in an April 23 statement.

The proposed legislation would give B.C. the right to sue to recover the cost of health-care benefits “caused or contributed to by a health-related wrong,” regardless of whether an individual makes a claim.

Contributors to a health-related wrong could include any goods or services that can be demonstrated to carry a risk of disease, illness or injury, and legal action would apply in instances where a defendant violated a duty or obligation to someone who may have been exposed to such as good or service.

The legislation is patterned on the Tobacco Damages and Health Care Costs Recovery Act that came into force in 2000, which opened the door for the province to sue cigarette makers to recover billions of dollars spent on related health-care costs, according to Craig Ferris, partner of Vancouver-based Lawson Lundell LLP.

Other legislation modelled on this act—the Opioid Damages and Health Care Costs Recovery Act—led to one of the largest and most complicated class action suits in Canadian history, he added.

Ferris said Bill 12 has the same nature as these two acts but with a much broader scope, as it’s not limited to any particular industry.

“This bill allows [the government] to sue anyone for the present value of the total expenditure of government for health-care benefits, whenever they’ve done something that could reasonably be expected to result in the [health] risk,” he said.

“That could be sugar, that could be [Coke], that could be cell phones, that could be anything. So that’s the problem—the way that legislation is written, it doesn’t really catch behaviour that is bad, it catches things that many years later, somebody might determine is bad.”

In a statement to BIV, the B.C. government said Bill 12 targets wrongdoers, not law-abiding companies.

Yunis said B.C. businesses are already facing high interest rates, slower economic growth, difficulty finding workers and some of the highest taxes in the country, and that the last thing they need is fear government might sue them.

“We understand the intention of the bill and what the government tries to do with protecting public health, and businesses are at the frontline of protecting public health both for their employees and consumers. But the broad scope and vague language of the bill raised a lot of alarm,” he said.

“B.C. is in a very fragile position economically right now and this is not the time to introduce legal uncertainty.”

Fiona Famulak, president and CEO of the British Columbia Chamber of Commerce, said the bill sends the wrong message to businesses and investors.

“If they decide that they want the bill to be in place, then make the amendments to the bill that focus specifically on the issues that they want to address, as opposed to putting out a bill that is so broad in application and unclear,” she said.

But Ferris said that, because of the nature of the bill, he doesn’t believe it can be redrafted in a way that doesn’t pose significant harm and risks to businesses. 

“This legislation is intended to be a hammer that the government can use. I’m not sure making a slightly smaller hammer is very useful. Personally, I think that the legislation is overkill and it’s unfair to businesses. I’m not sure that there’s a way of making it more palatable,” he said.

Yunis said the fact that Bill 12 received so much pushback and was paused within two months of its introduction shows a broader problem: The government’s lack of consultation with businesses on legislation that could impact them significantly.

He said business leaders also felt they were not listened to when the B.C. government introduced proposed changes to B.C.’s Land Act and amendments to Labour Relations Code earlier this year.

“This is a very concerning pattern. That pattern of behaviour that we’re seeing from these governments is the lack of consultation with the actors who are actually being impacted by the legislation they put forward. They don’t seem to listen to … business concerns,” said Yunis.

The province said it is now focusing on the BC Online Safety Action Table, which was announced last month and asks the world’s biggest social media companies to take action to keep young people safe online.

“The [action table] also gives government an opportunity to pre-emptively mitigate harms to British Columbians, whereas Bill 12 would only allow the government to recoup costs of addressing harms after they have occurred … [and] could see us tied up for years in costly and lengthy litigation,” said a statement from B.C.’s attorney general’s office.

“If measures suggested by the action table are not meaningful or effective, we will revisit Bill 12, if that is what is deemed necessary to ensure that our kids are kept safe online.”

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