The federal government seemingly had a very minor role in the mediation between tobacco companies and the provincial governments that were suing them to recovery health care costs. That may prove to be a problem.
The proposed plan that has emerged from these discussions - and that will be subject to a creditors' vote on December 12 - suggests that the federal (and national) interests may have been compromised by this deal that was brokered in secret over the past 5 years.
This post identifies the financial downsides to the federal government from this deal. A future post will look at the public health implications.
Next year, Revenue Canada is set to issue $1.8+ billion in settlement-related tax refunds (and will lose $150 million per year for the subsequent 20 years)
Over the past 5+ years, the companies have been required to preserve all of their income and to set it aside to resolve their debts. The $12.5 billion that has been amassed so far will be used to provide upfront damage payments to class actions and provinces. Over the next 20 or so years, the remaining $20 billion of the damages promised will be paid in annual installments.
The cash reserve was built from the after-tax income of the tobacco companies. Now that this "income" is being converted into "damages", the corporate income tax of the companies will be reassessed and the income tax paid in those years will be refunded. This expectation is clearly identified in the settlement, and is several times referred to as "Tax Refund Cash Payment".
Based on a federal corporate income tax rate of 15%, the amount refunded by the federal government for the upfront damage payments of $12.45 billion will be in the order of $1.8 billion. The cost to the federal treasury for the remaining $20 billion will be $3 billion: with an annual loss of $150 million if the repayment rate follows that forecast by the plan. The total cost to the federal treasury will thus be around $4.8 billion.
Corporate income tax paid to provinces will also be refundable. Because their tax rates are lower, the refund will be smaller. Presuming a provincial corporate income tax rate of 10%, this will reduce the real value of the settlement payments to the provinces by 10%, or $2.47 billion.
From the perspective of Canadian citizens - who are implicated in the finances of both federal and provincial governments - the true value of the settlement payments is diluted by the impact on both provincial and federal corporate income tax revenues.
The true value to the collective public purse of the provincial settlements is thus reduced by these tax implications from $24.725 billion to $18.54 billion. Once payments to outside counsel, discussed here earlier, are also factored in, the true value falls by a further $1.77 billion, to $16.77 billion. Lost income taxes and legal fees thus reduce the societal value of the settlement by one-third.
Revenue Canada is owed hundreds of millions - the Plan does not provide for repayment
When Imperial Tobacco applied for creditor protection in March 2019, it identified a debt to Canada Customs and Revenue Agency of more than $500 million. When the vote is taken on December 12, this debt to the government of Canada is reduced (without explanation) to $333,535,110. There is no provision in the proposed plan for this amount to be repaid to the federal government. Justice Morawetz commented on this during the hearing on October 31st, noting that there may be other provisions in law which apply to amounts owing to government.
If this debt is not repaid, the federal government will be out of pocket by more than a decade's value of the yet-to-be-implemented Tobacco Cost Recovery Framework.
Ottawa will help pay for the continued smoking that is built into the settlement
The federal government provides a significant portion of the health care costs for which the provincial governments sought recovery. Yet there is no indication that the any of the payments made by tobacco companies to the provinces will be shared with federal government, or that Ottawa will be off the hook for its share of the escalating health care costs caused by smoking.
Economist Glenn Harrison was engaged to calculate the costs to provincial health care systems resulting from tobacco use, with separate calculations for tobacco use by people who became addicted before 1996. His report, included as appendix "G" in the proposed plan, provides these estimates for each province in graphical form.
Mr. Harrison's estimate for Ontario, shown above, suggests that the cost of treating smoking-caused diseases will continue to rise for the next quarter century: with an estimated annual cost of $6 billion in 2030 and $7 billion in 2040. The situation is similar in all provinces.
Because of the Canada Health Transfer, Ottawa is a stakeholder in provincial health care systems, and is affected by the provisions in the proposed plan to impose a covenant on companies that they will maintain their business practices to ensure the continued sale of cigarettes.
As a creditor of Imperial Tobacco, the government of Canada will have 1 vote on December 12th on the version of the plan that would apply to that company. For the reasons outlined above, there is every financial reason for it to say "no".
