The Province of BC et al Bring Suit Against Big Tobacco: S Farce in 3 Acts
UPDATE 1-Tobacco companies win partial legal victory in Canada -BC, ON, NB, NL
Dec 8, 2009
* Industry wants federal government added to two cases * Cases deal with the health damages of smoking (Adds Canadian Cancer Society comment) By Allan Dowd
VANCOUVER, British Columbia, Dec 8 (Reuters) - Tobacco makers being sued in Canada over the health risks of smoking won a partial victory with a ruling on Tuesday that the Canadian government's role in developing some strains of tobacco should be considered in the upcoming trial. A divided British Columbia Court of Appeals panel overturned part of a lower court's ruling that the federal government could not be drawn in by the industry as a third party defendant in cases over the health costs associated with smoking and the promotion of "light" cigarettes. The appeals panel, ruling on two related cases, said the government may have to share in any possible liability related to Agriculture Canada's role in the development of strains of tobacco used to make "light" and "mild" cigarettes. The first case brought by the province of British Columbia seeks to collect damages from several cigarette makers and their international parents for the cost of treating smoking-related diseases. The second case is a class-action by smokers against Imperial Tobacco, who allege they were mislead into believing that cigarettes labeled "mild" or "light" were safer to smoke than regular cigarettes. The tobacco industry has long argued that government should share in any responsibility for damages because they were "partners" in the sale of tobacco by keeping it legal and collecting tax revenue from it. "The B.C. decision will demonstrate that the government of Canada has known about the risks associated with smoking for decades and that it instigated and promoted the development and sale of lower-tar tobacco products." Imperial Tobacco's vice-president, Donald McCarty, said in a statement. By adding the federal government as third party defendant to the cases, the industry can argue that Ottawa should share in responsibility for a portion of any damages awarded when the cases eventually go to trial. The rulings, which divided the panel 3 to 2 in both cases, allowed portions of the industry's appeal. The appeals panel let stand a portion of the lower court ruling that the federal government should not be considered liable for a failure as a regulator to adequately warn about the dangers of smoking. An anti-smoking group said the industry did not get much of what it wanted, and the debate over tobacco strains was a "side show" to the main issue that the industry knowingly covered up the dangers of tobacco smoke. "The industry's strategy has always been to blame someone else," said Rob Cunningham of the Canadian Cancer Society. Several of Canada provinces have sued the industry for billions in damages, but the British Columbia case was the filed first and is being used as the lead case in the courts.
The British Columbia case, which is modeled on legal action by U.S. states against the industry in the United States. In addition to British American Tobacco's (BATS.L) Imperial Tobacco Canada Ltd, the cases involve Rothmans Benson & Hedges Inc, Philip Morris International (PM.N) and Rothmans Inc, and JTI-Macdonald Corp, owned by Japan Tobacco Inc (2914.T). Japan Tobacco is not named as a defendant. (Reporting by Allan Dowd; editing by Carol Bishopric) Read ________________________________________ Imperial Tobacco Canada satisfied with ruling by B.C. Court of Appeal in landmark cases -BC, ON, NB, NL Transmitted by CNW Group on : December 8, 2009 17:31 Federal Government is now a party in class action and Medicaid suits MONTREAL , Dec. 8 /CNW Telbec/ - Imperial Tobacco Canada is pleased that the B.C. Court of Appeal decision in two high-profile lawsuits will require the federal government to answer for its actions and decisions governing tobacco use in this country. "We believe it's time to set the record straight about the federal government's role as a senior partner in the tobacco industry," said Donald McCarty, Imperial Tobacco Canada's Vice President of Law. "The B.C. decision will demonstrate that the Government of Canada has known about the risks associated with smoking for decades and that it instigated and promoted the development and sale of lower-tar tobacco products." Imperial Tobacco Canada petitioned the B.C. Court of Appeal for the right to include the federal government as a third party in a class action suit against the company to recover the money spent by smokers on "light" or "mild" cigarettes and in the B.C. government's suit to recover health care costs from the industry. "The Government of Canada has been a senior partner of the tobacco industry for decades. They have legalized tobacco in Canada , heavily regulated it, and taxed it to the tune of billions of dollars every year," added Mr. McCarty . "It is only right that the Government of Canada stands next to the tobacco industry in these cases and be accountable for its role in the history of tobacco control strategy." Imperial Tobacco Canada has also issued third party notices in other provincial lawsuits in Newfoundland, Quebec and New Brunswick . Read ________________________________________ Cancer Society supports light cigarette class-action case -NL Last updated at 10:48 AM on 17/11/09 The Telegram Comments 1 The Canadian Cancer Society is supporting a court appeal this week that will attempt to start a class action over light cigarettes. In a news release, the society said the Sparkes case proceeding as a class action would provide “necessary access to justice.” Without class-action certification, thousands of consumers in the province would have no practical remedy “as a result of the ‘light’ and ‘mild’ deception,” the society said. The case returns to court Wednesday and Thursday, when the Newfoundland and Labrador Court of Appeal will begin hearing arguments as to whether a lawsuit against Imperial Tobacco for deception related to so-called “light” cigarettes should be certified to proceed as a class action. In 2008, the Trial Division of the Supreme Court of Newfoundland and Labrador ruled the case could not proceed as a class action because the cigarettes weren’t purchased directly from the manufacturer. Ches Crosbie is the lawyer representing the plaintiffs. The society said in British Columbia, in a case similar to Sparkes, the Knight v. Imperial Tobacco Canada Ltd. case has been certified to proceed as a class action. In Quebec, there are two broad product liability class actions that have been certified to proceed against Imperial Tobacco and the two other major tobacco companies. The cancer society also noted that in a 2002 judgment upholding federal advertising restrictions, the Quebec Superior Court concluded “the industry has always known that light cigarettes are as damaging to health as regular cigarettes but has nevertheless mounted a subtle marketing plan that leads smokers to infer they should smoke light cigarettes if they are concerned about their health.” Imperial Tobacco and other major tobacco companies removed “light” and “mild” descriptors because of a 2006 settlement with the federal Competition Bureau. But, the Cancer Society remains concerned that tobacco companies continue to engage in package deception that misleads consumers. Nine provinces have also brought forward legislation to recover Medicare costs related to smoking, while three provincial governments — B.C., Ontario and New Brunswick — have filed lawsuits. This province has legislation introduced but not yet proclaimed. Read________________________________________ 'Light' cigarette case going back to court -NL Last updated at 8:53 AM on 17/11/09 BARB SWEET Health/Justice The Telegram Comments 14 As a teenager disgusted by his parents' smoking, Shawn Lewis swore he'd never take it up himself. That's until he developed a crush on a girl while taking a cadet lifeguard course at CFB Greenwood in Nova Scotia. "I sat down and she asked me if I wanted a cigarette, and I never put a cigarette to my lips before," Lewis said. "It was disgusting and gross. I excused myself. I went back to the trailer and continued to empty the contents of my stomach. That didn't deter me. The next day I went back, sat down there again and had another cigarette with her, as hard as my body tried to tell me this was wrong." Became addicted That was in 1982, and Lewis was hooked on cigarettes by the end of the summer. People he respected smoked - besides his parents, doctors and military officers. "I told my father that I was smoking over the summer. The only thing he told me is, 'If you want to smoke, you'll have to go to work and buy your own cigarettes.' He didn't really know the health hazards associated with smoking." In the early 1990s, married to a girl in St. John's he met at a high school dance, and a new father, Lewis decided that based on marketing, light cigarettes would be a healthier choice and took up Player's Light. A former member of the military, he's quit on and off since, and this week hopes the court will side with struggling smokers like himself in an appeal of a decision on light cigarettes. The application for certification was filed by Ches Crosbie on behalf of Victor Todd Sparkes - the class action's representative plaintiff - against Imperial Tobacco Canada Ltd., Imperial Tobacco Company Ltd. and the Attorney General of Canada. Sparkes' lawyers claimed the tobacco companies descriptions of "light" and "mild" as well as other descriptive terms were part of a deliberate misinformation campaign by the tobacco manufacturer to mislead and deceive the public into thinking the use of such products would have less harmful effects than smoking "regular" cigarettes. But Supreme Court of Newfoundland and Labrador Justice James Adams said in 2008 the plaintiff failed to establish a cause of action under the federal Trade Practices Act. Adams denied the certification on the basis consumer Victor Sparkes did not buy the cigarettes directly from Imperial Tobacco. But the matter is being heard again by the Court of Appeal Wednesday and Thursday. Crosbie argues people can't buy cigarettes directly from the supplier. Lewis originally joined the class action because it sounded like his life story. "We were blindsided. We were misled and taken advantage of. ... At the end of the day, I wanted to quit. I thought the switch to light cigarettes was going to help me take that edge off from smoking regular cigarettes," Lewis said. "So they had me. I couldn't win." Lewis has tried everything to quit, from laser therapy to special chewing gum, and has quit for long stretches. He took it up again four months ago after having quit for seven months. "It seems like this law that was created to protect us is actually providing protection to the wrong people," he said of Adams' decision. Lewis said cigarette manufacturers are now marketing cigarettes under names like "silver," "smooth," and "white" and those are just as enticing as "light or "ultra-light." "Whatever colour they want to put to the packaging or however they want to prepare it, none of it's good for you," he said. "My main goal of this is to just get it out there and to let people know that there is no healthy cigarette." Lewis is also looking forward to stores being rid of powerwalls - prominent advertising displays used to market cigarettes. "Just going in those stores is like cutting chocolate off for the rest of your life and ending up at Willy Wonka's Chocolate Factory," he said. "How can you not be tempted - that's the powerful grip it has on you. It's something I fear and I know I am going to battle for the rest of my life. And hopefully, God willing, I will finally have the strength to lay the cigarettes down for good." A provincial law to ban powerwalls takes effect Jan. 1. Meanwhile, a lawsuit against tobacco companies announced by this province a decade ago is still active for the Government of Newfoundland and Labrador, but there has been little progress. No statement of claim has been filed nor has the province proclaimed the necessary legislation to join the lawsuit, although it has been passed. In October, the province of Ontario joined British Columbia and New Brunswick in a lawsuit against a group of tobacco companies. Read ________________________________________ Canada Provinces Accused of Misusing JTI Bankruptcy (Update2) Oct 20, 2009 By Joe Schneider
Oct. 20 (Bloomberg) -- Canadian provinces, seeking more than C$80 billion ($76 billion) from tobacco companies for treatment of smoking-related illnesses, are attempting to improperly use the bankruptcy process to force Japan Tobacco Inc.’s JTI-MacDonald unit to settle, a company lawyer said. “The strategy is to force JTI into an expedited settlement,” David Scott, a lawyer for the tobacco company, told Superior Court Judge Peter Cumming in Toronto today. “It’s a lever to force JTI to settle these health-care claims.” JTI-MacDonald, the maker of Export A cigarettes in Canada, filed for bankruptcy protection in 2004, after a Quebec judge ordered the company to pay C$1.4 billion that the province claims it lost in taxes when tobacco companies exported cigarettes to the U.S. in the 1990s, knowing they would be smuggled back into Canada for resale on the black market.
British Columbia, Ontario and New Brunswick today asked Cumming to put a time limit on new lawsuits seeking to recoup health-care costs from JTI-MacDonald and allow their claims to be included in the company’s restructuring process. The request put the provinces at odds with the federal government, which sided with the tobacco company and urged the judge to either dismiss it or put it on hold indefinitely. JTI has assets of C$1.81 billion and liabilities of C$1.8 billion, according to its filings, said Laura Donaldson, an attorney for British Columbia. All the liabilities are owed to companies related to Japan Tobacco, having been imposed on JTI during a 1999 restructuring in a bid to make the Canadian unit judgment-proof, Donaldson said. ‘No Improper Motive’ The provinces will seek access to that money to settle the lawsuits under the bankruptcy process, called the Companies’ Creditors Arrangement Act, she said. “There’s no improper motive whatsoever” behind the province’s request for a time limit on the lawsuits and inclusion as creditors in the JTI bankruptcy, Donaldson said. “It’s improper for the company to try and exclude those claims.” Such an order, if granted, would be unconstitutional because a judge overseeing a bankruptcy can’t prohibit governments from passing laws that can be used to pursue such lawsuits, Ronald Slaght, a lawyer for the federal government, told Cumming. “It’s an attempt to twist the CCAA,” Slaght said, giving the provinces “a leg up” on all other plaintiffs. The tobacco companies have been sued by groups of Canadians in class-action lawsuits, which also are health claims, and “nobody has given them notice,” Slaght said. Billions in Damages Ernst and Young Inc., the accounting firm appointed by the court to oversee JTI’s operations while under bankruptcy protection, also urged the judge to reject the provinces’ request. British Columbia in 2001 sued tobacco manufacturers, including JTI, British American Tobacco Plc and Rothmans Inc., to recoup the government-funded health-care system’s costs of treating smokers for cancer and other tobacco-related illnesses. The province is seeking unspecified damages which will likely be in the billions of dollars, Donaldson said.
Ontario sued in September, seeking C$50 billion. Quebec has said it will also sue and will likely seek about C$30 billion, Donaldson said. Imperial Tobacco Canada Ltd. and Rothmans agreed last year to pay about C$1.15 billion in fines and penalties to settle the smuggling case. JTI hasn’t settled, although Scott said if the company does it will allow it to exit bankruptcy. The hearing on the provinces’ request will resume tomorrow, Cumming said. The case is Between JTI-MacDonald and the Attorney General of Canada, 04-cl-5530, Ontario Superior Court of Justice (Toronto) Read ________________________________________ Judge rules against tobacco companies Published Saturday July 25th, 2009 FREDERICTON - A Court of Queen's Bench judge has ruled against a group of big tobacco companies being sued by the New Brunswick government. The defendants wanted lawyers the province hired from outside New Brunswick disqualified from the case. The province is suing them to recover millions in health care costs associated with tobacco use.
The ruling clears the way for the province to stay the course on its lawsuit. Justice Thomas Cyr ruled the province could keep the consortium of lawyers it has hired from New Brunswick, Ontario and the United States. The province is suing 12 tobacco companies, including Imperial Tobacco Canada, Benson & Hedges Inc. and Philip Morris U.S.A. Inc. Read ________________________________________ N.B. tobacco lawsuit scores early victory -NB Last Updated: Wednesday, July 22, 2009 | 10:16 AM AT CBC News The New Brunswick government has won a preliminary battle in its lawsuit against several big tobacco companies, which were fighting to block a team of outside lawyers from working on the court case. Read ________________________________________ Anti-smoking group cheers N.B. lawsuit against tobacco companies -NB March 14, 2008 CBC News Imperial Tobacco says move is attempt at 'jackpot justice' that will waste public money An anti-smoking group says it's pleased the New Brunswick government is suing 14 tobacco companies, one of which on Friday called the move hypocritical and a waste of taxpayers' money. Read
New Brunswick's lawsuit has nothing to do with public health MONTREAL, March 13, 2008 /CNW Telbec/ - Imperial Tobacco Canada is disappointed that a senior partner in the tobacco industry, the Government of New Brunswick, has decided to move forward with legal action that is simply a cash grab and not in the interest of New Brunswick taxpayers. "Governments are senior partners in the tobacco industry. Governments in Canada earn from tobacco 18 times the profits of the entire tobacco industry, they heavily regulate the industry and have been fully aware of the risks associated with tobacco products for decades," said Benjamin Kemball, president and CEO of Imperial Tobacco Canada. "It is hypocritical that governments, like New Brunswick, turn around and sue a legal industry that they oversee and license while allowing an illegal tobacco industry to flourish." Governments across Canada collect approximately $8 billion in taxes from the tobacco industry; the province of New Brunswick collects over $80 million a year. Imperial Tobacco Canada believes that this lawsuit will take years to be resolved and will cost the New Brunswick taxpayers millions of dollars. A similar action in British Columbia has been ongoing for almost ten years. It has cost BC well over $20 million and it is still not over. "This lawsuit is a waste of taxpayers' money and will never result in the monetary windfall the New Brunswick government hopes for," said Mr. Kemball. "Under this arrangement, the only real winners here will be the lawyers, including the US two plaintiffs law firms leading the invasion presumably to introduce the 'jackpot justice' rampant in the United States." In the very unlikely scenario that any of the provincial governments prevail, there is no hidden vault of money for settlements. The claims will run into the billions of dollars for just one province. This is more than the profits of the entire tobacco industry. Read
Supreme Court Oks Governments Shooting Wildly In The Dark
Sunday, August 19, 2007
This is so disturbing and depressing that I have put off writing about it (or anything, really) for many weeks.
Charter Rights considered acceptable collateral damage?
In the commentary explaining their final ruling on "RJR-MacDonald v. AGC [1995 ] 3 S.C.R. 199", our Supreme Court Justices articulate some very disturbing rationalizations for their decision in this case. If these rationalizations are already entrenched or become entrenched as 'precedent', there may be no hope left for preventing total legislative micromanagement of every aspect of our lives.
Supreme Court ruling & commentaryThe potential impact of this ruling on the tobacco companies and their ability to advertise their products is of no consequence to me personally. Frankly, who cares about that? What is of concern to me are general principles articulated in this ruling and the potential of those principles to reduce the Charter of Rights to a meaningless 'paper tiger'.
Here are the passages containing an ideological formula that ought to send icebergs of chill running up and down your spine:
"Where ... legislation is directed at changing human behaviour, ... the causal relationship may not be scientifically measurable. In such cases, this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective"
To begin with, when and how did "changing human behaviour" become a legitimate objective of legislation? The purpose of criminal law is to prohibit the intentional (or negligent) inflicting of harm upon others and to provide punishment for transgressors. The purpose of civil law is to govern relationships between individuals not involving criminal conduct, such as the fulfillment of contracts, the payment of bills, business arrangements, and similar matters. "Changing human behaviour" is an objective and component of social marketing, (a social engineering tactic employed by the Health Promotion industry), which is concerned with manipulating people's attitudes and behaviour. Manipulating attitudes and behaviour is not a legitimate objective for legislation. Using legislation as a form of social marketing would be an appalling, trivializing, abuse and misuse of the power we have vested our elected representatives with.
In plainer language, the passage cited above is talking about the relationship between the infringement of a Charter Right, which may be inherent in a piece of legislation, and the "benefit" sought by passing that legislation into law. "Causal connection" means - how do we know that infringing upon a Right, such as suppressing Freedom of Expression, will acheive the desired objective (the "benefit") of the legislation? In this passage, the Justices are saying that it's "ok" for there to be no direct proof of a causal connection, that it's "ok" for there to be no scientifically measurable relationship between the suppression of a Charter Right (inherent to the legislation in question) and the desired outcome of the law! The Justices are saying that they accept "common sense" - reason and logic - intuitions of a relationship between a given law and it's desired outcome. OMG! That's the same type of rationalization that allowed laws like forced sterilization of the mentally challenged to over-ride the rights & freedoms guarantees in various countries' constitutions. The causal relationship between maiming certain people and depriving them of their reproductive capabilities, against their will, and "genetic improvement of the human race" made logical, reasonable sense to the Healthist technocrats of those times - but in reality those people turned out to be deluded, bigots, and totally wrong!
"Deference may be appropriate in assessing whether the requirement of rational connection is made out. Effective answers to complex social problems, such as tobacco consumption, may not be simple or evident. There may be room for debate about what will work and what will not, and the outcome may not be scientifically measurable. Parliament’s decision as to what means to adopt should be accorded considerable deference in such cases."
In this passage, the Justices toss their own minimal requirement for evidence of a connection - between the violating of Charter Rights inherent to some piece of legislation and the desired outcome of the law - out the window. "Deference may be appropriate in assessing whether the requirement of rational connection is made out" - in other words, it's ok if there isn't even a clearly discernible rational/logical connection between the suppressing of a Right and the desired outcome of a law...if the intent of the law is to "address complex social problems".
"There may be room for debate...", "the outcome may not be scientifically measurable", "Parliament's decisions ...should be accorded considerable deference..."
The Justices seem to be saying that when a law is intended to "address complex social problems" - anything goes! Governments can & should shoot blindly in the dark, cast vast and intrusive nets of regulation that may or may not have any discernible connection to the social problem in question, trampling over Charter Rights - who knows, they might get lucky and pass a law that actually has a measurable impact on the targeted problem. But its "ok" to violate Charter Rights in stacks of laws that never do have a measurable impact - because "effective answers to complex social problems...may not be simple or evident".
Apparently, our Supreme Court Justices are willing to accept and endorse legislation that clearly violates our Charter Rights, for which there exists no direct proof that the measure(s) in the legislation are causally connected to the intended outcome, and from which there may never be scientifically measurable impact on the issue they are intended to address - so long as such legislation is about "complex social issues".
Is there anything in our lives today that doesn't involve complex social issues? According to the Population Health & Health Promotion industries - the people who are engaged in lobbying governments for a never-ending stream of intrusive legislations micromanaging every aspect of our lives - all problems in our society constitute complex, inter-related social issues. The above quoted passages from the Supreme Court ruling, and the principles described within them, appear to be rationalizations for allowing social engineering technocrats to draft and pass any & all laws and regulations that they might possibly concoct - regardless of the Charter Rights violations they may contain.
Ontario won't join tobacco lawsuit
Dec. 11, 2006 Ontario is refusing to join six other provinces in a multibillion-dollar lawsuit against big tobacco companies, and will let British Columbia lead the legal fight. B.C., Saskatchewan, Manitoba, New Brunswick, Nova Scotia, and Newfoundland and Labrador all plan to sue to recover health-care costs related to smoking. But Ontario Premier Dalton McGuinty says his government doesn't want to punish big tobacco, and warns there's "considerable doubt" about the likely success of a lawsuit. McGuinty wants to see how B.C. fares in its effort to sue, noting that province has spent $10 million so far "with no reasonable prospect for returns in sight." The Ontario Campaign for Action on Tobacco says Ontario should join the lawsuit because of what it calls "decades of misinformation and deception" by big tobacco. The Non-Smokers' Rights Association says Ontario's refusal to join the other provinces is "destructive" to the national effort to hold tobacco companies accountable. The U.S. tobacco industry settled out of court, and anti-smoking lobbyists predict the same will happen in Canada because most of our cigarette companies are owned by American parent firms. Read
Tobacco chief warns of damage from Canada lawsuits Oct 18, 2006
By Stefanie Kranjec TORONTO (Reuters) - The head of Canada's largest tobacco company said on Tuesday the industry would prevail against government lawsuits currently being waged against it -- or else go bankrupt. Benjamin Kemball, president and chief executive of Imperial Tobacco Canada, told the Economic Club of Toronto the governments suing companies like his would, in the end, hurt their own tax revenues, foster a black market for cigarettes and do nothing to curb smoking in Canada. "When you look at the amounts of money being talked about just in one province alone, in (British Columbia), that's more than the total profitability of all the tobacco companies combined. So if, on the off chance, after a lengthy legal process, governments eventually get a ruling that goes in favor of them, then essentially what they'll do is bankrupt the tobacco industry," he said. British Columbia is the first Canadian province to try to sue tobacco firms -- as well as their parent companies outside Canada -- for billions of dollars in damages associated with the health costs of smoking-related illnesses. The province is looking to win C$10 billion ($8.8 billion) from the industry, and lists as defendants Imperial Tobacco Canada and its parent, British American Tobacco Plc; Rothmans Benson & Hedges Inc., a subsidiary of Altria Group Inc. and Rothmans Inc.; the Canadian Tobacco Manufacturers' Council; and JTI-Macdonald Corp. Kemball said he doubts foreign companies would actually be found responsible for damages in Canada and pointed out that even if they were, he can't see how the ruling would be enforced. Rob Cunningham, senior policy analyst for the Canadian Cancer Society, is confident the governments will win, and cites similar cases in the late nineties in the United States where state governments won out of court settlements worth some $245 billion -- without the U.S. industry going bankrupt. "If the Canadian companies were unable to pay if B.C. is successful, it may be that the parent companies will have to pay. Obviously they'll contest that, but this happens, right? If you have an American company that manufactures defective breast implants, they may have to pay damages to Canadians who are suffering. Similarly, a foreign company may have to pay damages for wrongs they have committed that have caused damage in Canada." Cunningham said. "The tobacco industry is in a public relations effort to try and portray themselves as good guys and that people should work with them. In fact, the interests of the tobacco industry are fundamentally opposed to public health because they are trying to stave off a decline in their sales..." Cunningham said Statistics from the Canadian Council for Tobacco Control show smoking rates among Canadians aged 15 and older have dropped from 25 percent of the population in 1999 to 19 percent in 2005. Read
Imperial Tobacco CEO says suits a waste of time
Jun 12 2006
Suing big tobacco to recoup the health costs associated with smoking is a waste of time and money that will only benefit lawyers, the president of one of Canada's cigarette manufacturers said Monday.
Benjamin Kemball, president and CEO of Imperial Tobacco, maker of John Player among other brands, is on a cross-country tour to defend his industry against the growing number of provinces planning to sue it.
Manitoba is about to pass a law allowing it to go after the major tobacco companies to get back some of the money it says it spends to treat smoking-related illnesses such as emphysema and lung cancer.
But Kemball argued smokers already pay more than their fair share of health care system costs. He said governments in Canada collect $9 billion a year in tobacco taxes from smokers, while they cost the health system $3 billion a year.
"We think it's important we get all the facts out there," said Kemball.
He said lawyers can sense the big payoff that could come from a major tobacco settlement, and are going after his industry because it's a "soft target."
Other industries -- like fast food companies -- should beware the lawyers once they've bled all the money they can out of tobacco, he said.
A lawsuit already launched against big tobacco in B.C. has taken eight years and cost B.C. taxpayers $20 million and it hasn't yet made it to court, said Kemball.
He is meeting Opposition Leader Hugh McFadyen this afternoon, but was denied a chance to sit down with anyone on the government side, being told they are too busy because the legislature is still in session. Read
November 25, 2005
Late in Sept., the Supreme Court of Canada opened up the way for the
Province of British Columbia et al to pursue a class action suit against the
tobacco companies for damages relating to health issues all the way back to
the 1950's.
Here is how I see this farce unfolding--and farce it truly is--and what I
will be looking for.
Act 1: BC Sets the Stage
With a deficit to fight and unable to raise taxes in a province that has
enough problems with the softwood lumber fiasco still unfolding and
unrsolved, some bright light in the Finance Department in BC(I assume) came
up with the idea of grabbing some money from big tobacco as a way to balance
the books. The trouble is that BC already charges the highest tobacco taxes
in Canada by far, so a mere cigarette tax increase was not in the cards: it
had to be something more profound(and profitable). Going back 50 years to
'recover all health-related costs" which could be laid at the feet of
smoking seemed a good idea. A $10 billion chunk of cash, Bob's your uncle,
and never mind that BC has run a handsome surplus of tobacco revenues over
related health costs.
The main weakness with their plan was that to get that much cash, the
tobacco companies would have to raise cigarette prices and that would affect
all provinces across Canada who would otherwise be effectively paying the BC
cash grab with (Ontario et al) money. There was nothing for the other
provinces to do but get their names added into the suit and get some of the
largess as well. And so it came to pass. (The Feds stood aside, of course:
they didn't have to get into the act. Any action which raises cigarette
prices and hence the profits to pay any settlement would be also taxed by
Ottawa. This was a no-brainier!)
Finally, the Supreme Court of Canada permits the suit to go ahead. Of
course, much is called for, both by those who have suffered from tobacco
illness or seen a loved one in that boat(the good guys), and those who own
the tobacco stocks or run the companies(the bad guys).
Act 2: The Courtroom Battle
Expect all the same old predictable stuff out of the US actions against
their tobacco companies to emerge here as well. " Big tobacco knew about the
heath issues". There must be some secret memos in the Canadian companies
that will/should see the light of day, a parade of sick and dying smokers,
and, of course, the provinces will roll out their accumulated health costs
to amaze and astound the public. The tobacco growers will even undoubtedly
be there just to remind that the farmers can be hurt as well.
The tobacco companies will undoubtedly point out that not every case of lung
cancer is/was tobacco related, that they already pay massive taxes to the
provinces and this is just a deficit-dealing 'double-dip' to get additional
revenues. They will try to avoid a jury trial, as juries are notoriously
generous with what they see as sin money. Indeed, if the potential jurors of
Canada are indeed lucky, the case will be heard by a judge alone as it will
take forever.
The suit will drag on, and on, and on, with delays, decisions and appeals.
Accusations and revelations will highlight the news hour. With a little bit
of luck, if the case is not going too well for tobacco, there might even be
some repentance, and some call for a little mercy. Some egregiously large
settlement will probably be levied by whatever provincial court this case
winds up in.. After all it is not politically popular to allow sin to
prevail and justice--or what passes for it here--must be done. Act. 2 will
end with the excitement of the "big judgement" being brought down. The size
of the settlement will astound the press and boggle the minds of the merely
mortal: after all, it will be the biggest settlement ever in a Canadian
court.
Act. 3: The Supreme Court(reprise)
The tobacco companies appeal the decision to the Supreme Court of Canada.
After some period of time in which sporadic attempts by the media and the
analysts will be made to read the tea leaves trying to decide which way the
court will go, some sort of decision will be eventually brought down. With
great fanfare, the day will come, it will be breathlessly reported, strong
men will swoon, children will weep, and justice will be declared to have
been done, the tobacco companies will mutter dier warnings, and..it will all
be over.
Bows, curtain calls for the victors, photos of the villains slinking off
etc., etc., and etc.
Meanwhile back at the Ranch..
The court will grant some mercy, of course, in that the settlement will be
paid over a period of time--a Long time--as otherwise, there will be no
settlement at all as the companies will go bust.
At this juncture that I must point out that no one wants the tobacco
companies to go bust, save for those diehard anti-tobacco anti-smokers. The
provinces need those deficit-reduction payments, the Federal government will
make out like a bandit for doing nothing-especially nothing bad as that
would really tick off the tobacco growers-and things will settle down
again. There is too much money in taxes at stake for anyone to be allowed to
permanently derail the tobacco gravytrain-and no one will.
Will justice or any "principle", or anything else that is noble be served by
all of this? Not on your life. This has nothing to do with any of those
things. It is about squeezing out some more money from somewhere. Despite
the fact that BC is one of the highest tobacco taxers in Canada, already
makes a huge multiple of the money from every pack of cigarettes that the
manufactures do, and even makes a larger amount of money from them than they
spend on the related health care. BC needs the increase in taxes, and will
have forced the rest of the provinces to go along with this suit, willing or
not.
We have seen this before in the US when the US states banded together to do
the same thing and they did it in spades, winning some $254 billion, if
memory serves. Of course, there was one greedy state(Illinois, I believe)
that tried to get an extra helping after the general settlement, but that
was quickly quashed by the rest of the gang because of the direct threat to
the solvency of the tobacco companies and therefore the loss of all that
settlement money to the others.
That's the way I see it
Top court rules B.C. can sue tobacco companies
September 29, 2005
CTV.ca News Staff
In a decision that could lead to cigarette-makers coughing up billions of dollars to pay for sick smokers' health care, the country's top court has ruled that British Columbia can sue the industry.
"They upheld the constitutionality of the British Columbia legislation," CTV Ottawa bureau chief Robert Fife reported from the Supreme Court. "This is a landmark ruling that could serve as a prototype for other provinces to sue the big tobacco companies."
At issue was a 1998 British Columbia law, the Tobacco Damages and Health Care Costs Recovery Act, that authorizes the province to seek health-care costs from major tobacco companies for treatment stemming from "tobacco-related wrongs."
Under that legislation, the B.C. government was seeking compensation from tobacco companies for public health care costs dating back 50 years, as well as for future costs for treating tobacco-related maladies.
The law spells out tough new ground rules that would curtail some traditional defences for civil suits, make it easier to prove a cause-and-effect link between smoking and disease, and put the burden of proof on the companies on some key legal points.
But before the provincial government could seek recovery, the constitutionality of the law was challenged.
Anti-tobacco activists hope that the B.C. suit could clear the way for other provinces to do the same -- just as most American states did in the 1990s.
That led eventually to a landmark settlement in which U.S. cigarette manufacturers agreed to a 25-year payment plan totalling $245 billion US toward the cost of treating patients with cancer, emphysema and other smoking-related illnesses.
Canadian Cancer Society lawyer Rob Cunningham says it is "very important to hold the industry accountable for decades of wrongful behaviour."
"We know that each year in Canada ... there's $4 billion in direct health care costs because of tobacco," he told CTV's Canada AM early Thursday.
"The claims of the B.C. government ... include misleading advertising, denying the health effects, concealing their research and targeting children," Cunningham added.
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