Law Times

Law TiMes • March 11, 2013 Page 9 FOCUS Plaintiffs, gov't settled early in cigarette case Continued from page 8 He refers to the U.S. case dealing with racketeering that took only nine months to complete. The Quebec case has been going on for a year already. It resumed on March 4, 2013, with three weeks of plaintiff evidence still to be heard. Johnston expects the trial to finish within the year. He characterizes the government's removal as a party to the case as an excellent development. "It is in conformity with the lack of liability, which was our opinion at the outset 15 years ago," he says. In fact, the plaintiffs and the government came to a settlement early in the proceedings. It provided that if the court found the government liable for any damages, the plaintiffs would reduce the amount of their claim by that sum. It's clear, then, that there was an agreement by plaintiff lawyers that the government shouldn't be there as a party. Johnston points out that in trials of this magnitude, the presence of another party adds significant time and expense. "We are very pleased that they are out of the case formally. We always thought it was one huge red herring. We never saw any possible liability on their part. They acted in good faith or they are protected by government immunity if they made a mistake." Johnston classifies the government's involvement as a peripheral issue in any case. He believes the third-party applications were for strategic purposes only. "Their presence was designed to make the trial more complicated and last longer. It was a successful strategy in terms of the volume of documents produced and very effective to delay the beginning of the trial. It created many procedural difficulties that wouldn't have been there if the government wasn't involved." Lawyer Rob Cunningham, senior policy analyst for the Canadian Cancer Society, agrees it's inappropriate for the government to be a party to the litigation. "The tobacco industry strategy has always been to blame someone else. Historically, in cases brought by an in- dividual smoker, they have said that the smoker should have known to quit, so it's their fault. Here they tried to argue that the federal government made them do it," he says, noting how aggressively the industry has always responded to any attempt by the government to regulate smoking. Johnston concedes that the government's absence creates a risk it may be unfairly blamed. "The challenge is that assertions could be made that we're not in as good a position to refute. We have some resources to set the record straight for the court, but obviously the government could do it better." Cunningham points out that the tobacco industry has free rein in the evidence and witnesses it calls. "They will call former government employees and they can introduce Health Canada documents. There has been extensive discovery and access to government information. There is no impediment to the tobacco industry putting the full picture before the court." Johnston understands that the government has a long history of litigation with the tobacco industry and is therefore understandably happy to be out of it but he'd like to see some government presence. "It seems to us it is in the government's interests that they are not portrayed as having failed to act competently. It is in their political interests to avoid that. They should be following the trial more closely than they are. They can be present in the room without being a party." In the meantime, provincial lawyers will be watching the case closely. "There is no doubt the provincial governments are going to benefit from all the work in the Quebec class action," says Cunningham. "The issues are similar. The evidence of industry knowledge, internal research, and advertising coming from the oral testimony and documentation shows the industry's behaviour over many decades." Legal representatives for the defendants in the class action declined to LT comment. Photo: Shutterstock/Andrey Eremin E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI TRUST Assisting you in Litigation & Forensic Accounting, Financial Investigations Suite 900 45 Sheppard Avenue East, Willowdale, Ontario M2N 5W9 Toronto, Ontario M2N 5W9 you're putting your reputation on the line. It's all about trust well placed. 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