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Opinion: Bill 12 throws B.C. businesses into legal grey area

Ambiguous language in B.C.'s new health-cost recovery act raises concerns for entrepreneurs
Bill 12's definitions of “product” and “harm” are so ambiguous it can apply to everything from restaurants selling fast food to hair salons using chemical products, according to the Canadian Federation of Independent Business. | Pixabay

The provincial government's recent introduction of Bill 12, the Public Health Accountability and Cost Recovery Act, has sent shockwaves through British Columbia’s business community.

Despite the bill’s good intention of protecting public health, its broad scope and vague language is sowing seeds of uncertainty among businesses and investors.

If passed, Bill 12 grants the government authority to sue businesses that knowingly market, manufacture or sell products, services or even by-products that are harmful to public health. In addition to penalizing wrongdoers, the bill enables the province to recover associated costs incurred by the health-care system.

Everyone agrees bad actors should face the music, but this legislation has a catch. Unlike other targeted laws that focus on recovering health-care costs from specific industries, like tobacco and opioid manufacturing, Bill 12 casts a wide net that could include almost any product or service in British Columbia.

In its current form, the legislation’s definitions of “product” and “harm” are so ambiguous it can apply to everything from restaurants selling fast food to hair salons using chemical products. As written, it is unclear what criteria will determine which products are harmful and why — all we know for sure is that the government decides where to draw a line in the sand.

Bill 12 doesn’t just include products or services that cause harm, it also expands businesses’ liability to include products or services that pose a risk of harm. As written, the bill’s definitions lack clear and specific guidance on how businesses can ensure compliance.

Can you imagine the stress of discerning these rules as a small business owner with no compliance department? Especially since there’s no way for them to confirm if they are at risk of litigation. In this challenging economy, the last thing small businesses need is legal uncertainty.

Businesses aren’t the only ones calling for clarity— numerous prominent law firms, including Fasken, Blakes, Osler, BLG, Lawson Lundell LLP, and others have published analyses outlining concerns about the bill’s expansive interpretation.

In the context of high interest rates, large deficits and slower economic growth, this bill is another crushing blow to B.C.’s diminishing competitiveness. The fallout of this bill doesn’t just impact current businesses — it may also deter future entrepreneurs and investors from starting new ones.

B.C. already has the second-highest payroll costs in the country, the highest minimum wage, high property taxes and the highest fuel taxes in Canada. If we add, “the government can arbitrarily sue you” to the mix, how can we expect entrepreneurs to consider B.C. as a viable place to set up shop?

When it comes to the relationship between policy, government and the private sector, signals are important. Clear rules are essential for small business owners to make informed decisions and operate without constant legal uncertainty hanging over their heads. After all, laws aren’t promises — they’re written in black and white.

Small business owners would like to see a bill that strikes a balance between protecting public health while fostering a vibrant economy without unnecessary legal burdens. This requires legislation that is specific, clear, fair and proportionate to the challenges at hand. The B.C. government needs to slow down and amend Bill 12 to clearly articulate its intended outcomes and provide businesses with confidence and clarity.

Emily Boston is a senior policy analyst at the Canadian Federation of Independent Business. Jairo Yunis is director of provincial affairs and Western economic policy at the Canadian Federation of Independent Business.