Law Times

Law Times • June 15, 2015 Page 3 www.lawtimesnews.com Lawyer predicts Quebec tobacco ruling will speed up other cases By Tali Folkins Law Times obacco-related lawsuits filed by Ontario and other provinces are likely to move to trial faster thanks to the work done by lawyers in the Quebec class action, says a Canadian Can- cer Society lawyer. "The plaintiff lawyers in Quebec have done a lot of the heavy lifting in terms of ev- idence, which is going to make it a lot easier for the Ontario government and the other provinces," says Rob Cunningham. "This case is of tremendous assistance to reduce the amount of work involved and also time involved to get to trial." The time taken up in the Quebec case speaks to the amount of work done by the plaintiff lawyers, he says. "A vast quantity of previously secret in- ternal tobacco company documents are now on the public record, and you have all of the testimony, over a very lengthy trial, which is also completed. So the evidence in the Quebec class actions does provide a road map for the lawyers representing On- tario and the other provinces in the medi- care cost-recovery suits. It really reduces the amount of work involved for them." Many of the facts at issue, such as the marketing practices of tobacco companies and the extent of their knowledge about the health effects of smoking, will be the same in the provincial lawsuits as in the class ac- tion in Quebec. "For me, it's a question of not whether provincial governments will be successful but by how much, and the Quebec class ac- tions demonstrate that it can be enormous in terms of the potential outcome," says Cunningham. A spokesman for Ontario's Ministry of the Attorney General said the province was "in the process of carefully reviewing the decision of Justice [Brian] Riordan of the Quebec Superior Court" but avoided com- menting directly on any impact of the Que- bec ruling on Ontario's lawsuit. All of the provinces have filed lawsuits against the tobacco companies to recover health costs with the claims adding up to about $120 billion. Ontario alone is seeking $50 billion. Jean-Marc Leclerc, chairman of the Ontario Bar Association's class actions law section, says the Quebec ruling may as- sist in those cases. "Now the provinces are targeting a different form of harm — return of money for health-care expenses — but the underlying merits documents about what the tobacco companies knew or didn't know I think is going to be largely on the same documentary record as the one the plaintiffs in the Quebec case relied on." Plaintiffs have filed a number of other class action lawsuits against tobacco com- panies in Canada, but the courts have so far certified only one in British Columbia, says Cunningham. The tobacco companies, meanwhile, are planning to appeal the Quebec Superior Court ruling announced earlier this month in which the judge awarded more than $15 billion in damages to the plaintiffs. LT NEWS Rejoice. Serengeti lets you take charge and take control of your entire legal landscape. You can organize and analyze everything from documents to deadlines, billing to budgets, pricing to profi tability, all with one surprisingly simple, maintenance-free system. In fact, Serengeti is so easy to use it's almost instinctive. Serengeti also allows you to collaborate, compare and share data more effectively than ever. Used by more than 18,000 in-house counsel and 21,000 law offi ces from international fi rms to solo practitioners, it's not only the most widely used system, it's also the highest rated. Just one more way Thomson Reuters gives you knowledge to act. To learn more, call 1-866-609-5811 or visit serengetilaw.com/canada The number one legal matter management, e-billing and performance analytics system saves you time, money and lots of headaches. Now, that's worth celebrating. T Ontario criticized for not implementing curative discharges By Tali Folkins Law Times n Ontario Court of Justice judge is calling on the prov- ince to reconsider its decades- old decision not to proclaim curative discharges in force. "The enabling legislation permits On- tario to maintain a policy inconsistent with the statutory duty of judges to sen- tence Aboriginal offenders restoratively and with restraint," wrote Justice Law- rence Feldman in R. v. Daybutch on May 29. "In my respectful view, the provincial policy requires a review to limit consti- tutional harm to the equality interests of Indigenous persons in this province." A lawyer who intervened in Day- butch agrees. "We think it's time for On- tario to re-examine its position in light of the findings by Justice Feldman," says Jonathan Rudin, who acted for Aborigi- nal Legal Services of Toronto as an in- tervener in the case. He argued that both the provision al- lowing provinces to opt out of curative discharges as well as Ontario's refusal to proclaim them to be in force violated the equality rights of aboriginal people. "The failure of Ontario to allow for curative discharge perpetuates, makes a situation of inequality even worse," he says. The comments follow Erica Day- butch's guilty plea to a number of drinking and driving charges. As part of her plea, she asked the court grant her a curative discharge. According to the Criminal Law Amendment Act, the courts may or- der probation on condition that the defendant take curative treatment for alcohol or drug use. But the Criminal Code doesn't require the provinces to proclaim the provisions in force. Six provinces and two territories have done so, but Ontario so far hasn't. In his ruling, Feldman noted that in 1996, the federal government codified the concepts of restorative justice and re- straint given the special circumstances of aboriginal people in the Criminal Code. As a result, he expressed concern about the province's inaction on curative dis- charges. "The unavailability of the cura- tive discharge means that in Ontario Ab- original offenders facing drinking and driving charges are sentenced punitively rather than restoratively and with re- straint when appropriate . . . leaving them to be treated here the same as all other drinking and driving offenders." As a remedy, Feldman said he would consider the appropriateness of a curative discharge for Daybutch and whether it's in the public interest. Criminal defence lawyer Jonathan Rosenthal welcomes Feldman's call to consider curative discharges. "It is long long overdue for Ontario to reconsider the curative discharge provision which has been enacted in many provinces," he says. "The provisions were created in recognition that alcoholism is a disease." The Ministry of the Attorney General refused to comment on the case. LT A

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