Law Times

Page 8 March 11, 2013 Law Times • Focus On Litigation Veterans' class action success inspires others Funeral benefits, charter among legal matters boosted by disability case exactly the same clawback as the military. McInnes Cooper is on that file as well and the legion ot content with inis advocating on the RCMP's spiring others with behalf. "We have already gone their military feats, forward to the government and veterans have won said that if it is an unfair praca victory in the letice for the Canadian Forces, gal arena through a class action then it should be considered an against government clawbacks on unfair practice for the RCMP as their pensions. Final approval of well," says Siew. an $887-million settlement that Another legal matter that includes retroactive payments and may get a boost is the Supreme a scholarship fund of $10 million Court of British Columbia class will leave 7,500 veterans better off action lodged by Miller Thomand give a morale boost to those son LLP on Oct. 30, 2012, chalfighting similar battles at home. lenging the 2006 new veterans' The settlement of the Dennis charter. The statement of claim Manuge class action went before alleges the charter serves to Justice Robert Barnes of the Fedreduce soldiers' recompense eral Court on Feb. 14, 2013. It deals by up to 50 per cent over their with the reduction of long-term lifetimes and is therefore disdisability benefits by the amount of criminatory and contrary to s. the monthly Veterans Affairs Can15 of the Charter of Rights and ada disability pension paid under Freedoms. the Pension Act. McInnes Cooper Don Sorochan of Miller 'In our case, many people haven't been given proper compensation at all,' says Don Sorochan. filed the case in March 2007. While Thomson says he takes heart there remains some controversy from the disability settlement. over legal costs, the settlement has garnered praise from other cases involving changes to policies and programs "They spent seven years with the usual Department of veterans' groups such as the Royal Canadian Legion. because of unfairness. "The whole issue of retroactivity Justice feet dragging but when they finally got to the Andrea Siew, director of the service bureau for the is now firmly on the table." She hopes it will lend weight merits, the government gave in. Hopefully, they have legion's dominion command, spent 28 years in naval to the legion's battle over funeral and burial benefits that learnt the lesson that stalling tactics don't work at the end intelligence before taking on an advocacy role with the has yet to reach the courts. That dispute deals with both of the day. We hope for a more constructive approach." organization. She applauds the direction the government eligibility and amounts in the government's provision of So far, the Miller Thomson pro bono team has had took after a ruling on May 1, 2012, when Barnes stated a funeral services grant. Currently, the government pays only minimal contact with the government but lawthat monthly Pension Act payments awarded to veterans $3,600 for a funeral to low-income war veterans with yers learned in the last few weeks that it plans to opwith disabilities prior to April 2006 weren't income and less than $12,000 in assets. "The average cost of a funeral pose the certification motion. "Admittedly, ours is a the government therefore couldn't deduct them from in Canada is $7,000 to $12,000 and it is not available to much more complicated case," says Sorochan. "There the other benefits. The government chose not to appeal post-Korean War veterans," says Siew. "It caveats and ex- are not just legal issues but constitutional issues. Still, but instead negotiated a settlement with the assistance of cludes many and is very proscriptive. It can only be used we hope there will be some movement as the merits University of British Columbia president Stephen Toope. for various specified costs." show we are justified." "They stopped the unfair practice, which has a huge While the legion is concentrating on the policy perThe parties are jointly applying for judicial case manimpact in terms of the amount of money available to spective at present, the pension settlement gives Siew agement. "Our position will be that it should be treated veterans," says Siew. "They also made it retroactive — confidence that a legal approach can be successful. "It with some urgency," says Sorochan. "In the Halifax case, the first time that government has provided retroactive shows you can challenge the government. It takes a long the veterans had already been approved for payments. relief." She also praises the decision to include everyone time, but you can win." In our case, many people haven't been given proper eligible in the deal. "There is no cut-off date," she notes. The most immediate beneficiary of the decision may compensation at all. They are suffering from that on a Siew believes the settlement may set a precedent in be the RCMP in terms of its own class action challenging day-by-day basis." LT BY JUDY VAN RHIJN For Law Times N Tobacco litigation forges on without government involvement Provincial lawyers depart quickly following Supreme Court decision on liability BY JUDY VAN RHIJN For Law Times A s the defence case in the Montreal tobacco class action commences, the absence of government lawyers from the courtroom is notable. Since the government's removal from the proceedings in November 2012, the remaining parties have had to shoulder the burden of presenting the full picture with implications for the influence these proceedings will have on the provincial lawsuits yet to reach the courts. When the Quebec Court of Appeal applied the Supreme Court's unani- mous decision in R. v. Imperial Tobacco Canada Ltd., the government lawyers who had been present at the class action launched by Cécilia Létourneau vacated the courtroom with alacrity and left no representatives behind, even as observers. The Supreme Court had made it clear that there was no government liability. It found the government's interventions in the file were politically motivated and were therefore subject to immunity for political acts. The government's attitude is that its presence is no longer necessary, but the reality is that even without liability, it's a major player in the whole tobacco saga and is privy to enormous amounts of information on the issue. The question remains as to whether government input is necessary for the litigation to fulfil its potential. The problem will also resonate in the provincial actions brought by Ontario, British Columbia, Alberta, Saskatchewan, Quebec, New Brunswick, Newfoundland, and Prince Edward Island. Nova Scotia and Manitoba have also indicated an intention to file claims. While the federal government hasn't been formally removed from all government-instigated litigation, it's likely it will be upon application. Those matters are also likely to rely heavily on the work done in the Quebec class actions. www.lawtimesnews.com "We're the only case that's managed to get to trial," says Bruce Johnston, a partner at Trudel & Johnston and a member of the team prosecuting the Quebec class actions. He believes the Quebec case comes at a historic point in time. "We have access to many witnesses who may not be alive for long. The average age of the witnesses is late 60s. The evidence adduced now may not be available in the near future." In fact, Johnston believes his team is doing the provincial governments' job for them. "I don't think there's ever been a trial against the tobacco industry with as extensive evidence as we've got," he says. See Plaintiffs, page 9

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