Law Times

PAGE 10 FOCUS March 12, 2012 • Law TiMes Ontario tobacco litigation gets green light Decision comes as various government and class actions move forward BY JUDY VAN RHIJN For Law Times O ntario appears set to fol- low in the footsteps of other jurisdictions aſt er the Superior Court of Justice rejected arguments that for- eign tobacco companies aren't sub- ject to its jurisdiction. Nevertheless, the $50-billion claim for the recovery of medical costs caused by smoking still has a long road to travel before it emu- lates successes elsewhere. Already, the foreign defendants have all served and fi led notices of appeal that the Ontario government in- tends to vigorously oppose. Given that the tobacco compan- ies came to a settlement in all of the government claims in the United States, there may have been an ex- pectation of a more conciliatory approach in Canada and the many other countries pursuing simi- lar litigation. So far, however, that doesn't appear to be the case. Lawyer Rob Cunningham, a senior policy analyst at the Can- adian Cancer Society, recalls that the tobacco companies didn't settle south of the border until the very eve of trial. "Th ey may eventually consider settlements here be- cause the question is not wheth- er the actions will succeed but how much they will get," he says. Th e Cancer Society has supported tobacco litigation for many years as a question of justice and to hold the tobacco industry to account for what it considers to be its wrongful behaviour. Cunningham re- fers to such activities as adver- tising to children, misleading marketing related to mild and light cigarettes, inadequate health warnings, public-re- lations exercises denying the health risks, and concealing and destroying research. "It's been a decades-long coverup of health risks as a result of which thousands of Canadians have suff ered disease and died," he says. "If the tobacco industry had changed its behav- iour in the 1950s when the fi rst offi cial reports came out, smok- ing rates would have gone down much further and much faster and hundreds of lives would have been saved." Th e Ontario government claims that smoking is the No. 1 cause of premature death and illness in some American lawyers. Bennett Jones LLP in To- ronto is one of the fi rms repre- senting New Brunswick, which is in the discovery phase of its litigation. Saskatchewan, Mani- toba, Nova Scotia, and Prince Edward Island have also re- tained it. Partner Jeff rey Leon says the governments are ap- proaching the matter as litiga- tion and aren't depending on a settlement. "Our goal is to get into court as quickly as we can and get to trial," he says. Th ere are also several class 'Our goal is to get into court as quickly as we can and get to trial,' says Jeffrey Leon. Ontario at a cost of more than $1.6 billion per year in Ontario alone. All 10 Canadian provinces and two of the territories now have tobacco litigation legislation. British Col- umbia, Ontario, New Brunswick, and Newfoundland and Labrador have fi led cost-recovery actions and the other provincial governments have all announced their intentions to follow suit. In the meantime, they've engaged consortiums of law fi rms to represent them, including actions underway. Cunning- ham says the hottest news at the moment is the March 12 trial date for two class actions in the Quebec Superior Court. "Th ey are the fi rst class actions against the tobacco industry in Canada," Cunningham notes. "Th ey are huge, involving bil- lions of dollars. It will take a long time for the trials to be completed." Another class action in British Columbia, although certifi ed ear- lier, is still making its way towards an unknown trial date. Cunningham suggests that if TRUST you're putting your reputation on the line. It's all about trust well placed. the class actions are successful, they may have implications for the gov- ernment litigation. "If billions are awarded or the tobacco defendants agree to reforms in behaviour, that may aff ect things. Maybe some of the millions of secret internal docu- ments will become public." Leon, however, points out that the government litigation and the class actions don't have the same cause of action. "Class actions are built on principles of law that are not statutory. I can't say they are totally irrelevant but they are a very diff erent type of case. Th e extent to which the class actions might impact the statutory recovery of health-care costs is diffi cult to say." Of greater weight will be a decision in one of the provincial government actions. "When you deal with health-care recovery litigation, it is based on very simi- lar if not identical statutes," says Leon. "Th e evidence is also not identical but similar. A decision in one province will be highly rel- evant in the others." Already, there have been various legal decisions that have spurred the litigation on. In 2005, the Supreme Court approved the B.C. legislation and gave confi dence to all of the other provinces. Attempts by for- eign defendants to remove them- selves on jurisdictional grounds have been unsuccessful in Ontario, British Columbia, and New Bruns- wick. In October 2011, the Supreme Court refused to hear an appeal by four foreign companies against the New Brunswick decision. Th roughout the country, the federal government has been named as a third defendant. In July 2011, the Supreme Court unanimously determined that there were no grounds for this. Th is decision was followed in New Brunswick a few weeks ago but in Quebec, the issue has taken a diff erent turn. Th e class action plaintiff s and the federal govern- ment came to a settlement that provided that if the plaintiff s were to win, the federal government wouldn't have to pay damages and would in fact work together with them on the case. Th is settlement wasn't approved by the court. Th e federal govern- ment then brought a motion for removal as a third party, but that application was recently dismissed. It's no wonder, then, that Cun- ningham describes the litiga- tion as "huge and complicated." Governments and their lawyers, however, are determined to see it through and have lots of public support. "Th e tobacco industry is guilty of the most damaging cor- porate behaviour in Canadian his- tory," Cunningham alleges. "If there were ever a case for a trial for wrongful corporate be- haviour, this is the case." LT Follow on www.twitter.com/lawtimes Untitled-3 1 ALEKS MLADENOVIC | RICHARD HALPERN | SLOAN MANDEL Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com ThomsonRogers_LT_Mar12_12.indd 1 www.lawtimesnews.com It's what's inside that counts! Issue Date Focus March 26 Energy Law April 2 ADR April 16 April 23 April 30 May 7 May 14 May 28 June 4 June 11 Class Actions Personal Injury Law Running Your Practice Criminal Law 5/5/10 3:55:30 PM REGIONAL VARIANCE Task force finds different opinions on articling Are they trying to do too much? Immigration Law FOCUS ON $4.00 • Vol. 23, No. 8 COVERING ONTARIO'S LEGAL SCENE • WWW.LAWTIMESNEWS.COM BY KENNETH JACKSON For Law Times A Lawyer's clients out of luck ntitled-3 1 5/4/10 2:49:21 PM peared and left a trail of upset clients and mystery in his wake. Clients claimed he owed them at least $300,000 that was sup- posed to be in trust. To date, they've recovered only a fraction of that money. later, the web site ashbury.fr was shut down. citizenship, due to an illness. He failed to return to Canada as promised by May 15. been misappropriated by myself in the amount of $300,000," said Barrick. be perfectly clear, notwithstanding my serious health situa- tion, which was beyond my control, I did take all responsible and reasonable steps regarding the dissolution of my firm before going on indefinite sick leave." BY KENDYL SEBESTA Law Times C two unaffected parents can cause the body to produce abnormally thick two defective genes inherited from of their waking hours in therapy to in the lungs and other areas of the body's organs to function normally, body. While mucus is necessary for the combat the disease. For children with more severe lies that causes thick mucus to build more difficult aspects of it. Now it's aged to work through some of the born with cystic fibrosis, a chronic disease passed down through fami- to be active and spend nearly a third when it comes to staying on top of cystic fibrosis," says Blake. "When he was born, his parents would have been told he would probably only dren like him were oſten encouraged all systems go." Growing up, MacLeod and chil- six. The Cambridge LLP partner was most damage to people" says Ma- and that's really where it does the MacLeod's parents heard their son likely wouldn't live past the age of cLeod. "I was born with it and man- Chris MacLeod. As a young child in the 1970s, onstant congestion and thick, laboured breath- ing often prompted wary looks towards as scheduled because his health problems were too severe. He denied doing anything wrong with his clients' money. Barrick said he was going to France, where he holds In a statement, Barrick said he wasn't able to return to Ottawa "Apparently, there is an allegation that trust moneys have "This is simply untrue and a complete falsehood. Let me himself — appeared briefly last month as the president of the Ashbury School of English, a language school in Paris. When contacted by e-mail on Feb. 8, Barrick didn't respond. Hours Barrick first made the news last summer after he disap- the missing funds. Luc Barrick — or Luc Messin, as he was recently calling missing Ottawa lawyer resurfaced briefly under a new name in Paris last month while many of his former clients still wait to get their money back as efforts by the Law Society of Upper Canada have recovered only a small portion of Billions of dollars invested, not a penny lost. March 5, 2012 to his hemophilia. He's a law graduate from the common law program at the University of Ottawa. As for the money, he said selling an Ottawa condo would allow clients to recover to "having a bit of a cold all the time." "It tends to affect the lungs and digestive system until they break, in young children. MacLeod compares the disease life-threatening infections and seri- ous digestive problems, particularly amounts of it. If the mucus builds up and in the pancreas, it can lead to in the breathing passages of the lungs meant swallowing nearly 30 pills digestive issues, the disease also brosis Canada. "Chris is really ahead of the curve physiotherapy to open the lungs and antibiotics to combat infec- tions. More recently, they've also in- cluded the addition of a high-fat diet to combat the weight loss that oſten occurs when children with cystic fi- brosis aren't able to absorb all of the nutrients from the foods they eat, notes Katherine Blake, a campaign and major giſt specialist at Cystic Fi- each time they sat down to a meal with cystic fibrosis oſten included with their family. Other treatments for children A screen capture saved from the Ashbury School of English web site indicates what Luc Barrick, identified here as Luc Messin, has been up to in France. Barrick suffered complications from knee surgery related at $469,000. In the meantime, the LSUC obtained a court order See Situation, page 5 the missing money. That property at 324 Laurier Ave. in Ottawa went up for sale Chris MacLeod. 'The sooner we find a cure, the better, and I think we're just around the corner,' says live to be five or six years old and then as medicine progressed, possi- bly to 26 or 27 in the 1980s. Now, the See Lawyer, page 5 Ad Closing March 14 www.lawtimesnews.com March 21 April 4 IT/Telecommunications Law April 11 Aboriginal Law April 18 April 25 May 2 May 16 Internet/E-commerce Law May 23 Real Estate Law May 30 To advertise In an upcoming issue of Law Times, contact our sales team: Karen Lorimer 416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe 416-649-8875 kimberlee.pascoe@thomsonreuters.com 12-03-05 10:52 AM What's Inside 2X.indd 1 3/5/12 3:16 PM News, Commentary, Focus Sections, Analysis, Caselaw PM #40762529 LegalFeeds_Cl_Jan_11.indd 1 FEEDS LEGAL visit Canadian Legal News A daily blog of 1/6/11 11:44:49 AM canadianlaw yermag.com/ legalfeeds CLASS ACTIONS L AW TIMES P2 P7 P9 Luc Barrick resurfaces at Paris language school as condo nets just $52K T oronto lawyers to suit up for CF cure

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