Federal Crown Offers Unequal Treatment to Aboriginals in Newfoundland and Labrador Residential Schools Class Action

Last week, Justice Robert Fowler of the Supreme Court of Newfoundland and Labrador, granted an order allowing five residential school class actions to proceed by being certified as class actions.  Given that courts in nine other provinces and territories have given certification orders in similar actions based on similar issues, it might have been odd if the Newfoundland and Labrador court had not certified.  However, after some preliminary battling and a year on reserve while the judge worked hard on writing up the decision, finally our clients have certification and can proceed as a class.

In 2007, the federal government agreed to a $2 billion compensation package for aboriginal persons who were forced to attend residential schools here in Canada, but not including Newfoundland and Labrador.  And when the Prime Minister apologized formally to residential school survivors, Newfoundland and Labrador aboriginal residents were not included either.

The reason for this unequal treatment of Newfoundland and Labrador aboriginal persons rests in the fact that when Newfoundland and Labrador entered Confederation in 1949, the schools administered by the Moravians and by the Grenfell Association were already practicing the abuses complained of.  The federal government seems to have the idea that it had no responsibility for these abuses even though they may have continued up to the late 70s.  Mr. Justice Fowler found that it is certainly arguable that Canada did have such responsibilities, and that was all he had to find in order to certify.  But Newfoundlanders and Labradorians may not be surprised to see that once again, our residents are being offered unequal treatment.

The Indian Residential Schools Settlement Agreement which applies elsewhere in Canada includes an initial payout for each person who attended a residential school of $10,000 in money damages, plus $3,000 per year for each year of attendance.  Further amounts are available depending on proof of injuries, and teams of adjudicators are available to deal with claims for the increased amounts.  About 90,000 people are eligible for compensation, of which about 12,000 have so far decided to claim for the larger amounts through adjudication of their money damages claims.

I did an interview with CBC explaining the ins and outs of the Newfoundland and Labrador class actions in more detail.

Class Action Causes Reform of Wrongful Death Laws

The Government of Newfoundland and Labrador has introduced a bill to implement much needed reform in the wrongful death laws of the province.  The need for reform became obvious to all in the course of the Breast Cancer Testing class action which reached a mediated settlement in October last year. 

The amendment to the Fatal Accidents Act is aimed at allowing a court to make an award of damages which "may include an amount to compensate for the loss of care, guidance and companionship that a person for whose benefit the action is brought might reasonably have expected to receive from the deceased if the death had not occurred."  In other words, the intent is to reform the common law or judge-made law, to allow courts to make awards for intangible losses of an emotional, pain and suffering nature to close family members of a person who becomes deceased through the fault of another. 

These intangible losses are known as non-pecuniary losses, as distinct from pecuniary losses such as lost wages, which can be measured in money terms.

I call this the Donna Howell amendment.  Donna Howell will be remembered by many as a courageous breast cancer survivor who succumbed to her disease a month before the mediated settlement in the Breast Cancer Testing class action.  She was a compelling public spokesperson for many in the class.  Her husband Darryl Howell served on the negotiating committee at the mediation.  We were able to negotiate a settlement which treated all class members, whether living or deceased, on an equal footing in terms of damages awards, but this might not have been the outcome had we gone to court on the existing law.  With this new bill, the unjust laws of wrongful death will be brought into step with modern conceptions of justice and loss. 

But will the courts actually make non-pecuniary awards to the family members of the deceased?  I am sure it is what the legislature intends.  However courts are conservative, and I predict as a certainty that defence lawyers will argue that if the legislature had intended the new awards for loss of care, guidance and companionship to be non-pecuniary awards rather than awards for pecuniary losses, then the legislature would have said so.  To remove any uncertainty, it would be a simple precaution for the government to add the words "non-pecuniary" before the word "loss".  Surely the Donna Howell amendment deserves this much extra care.

Atlantic Lotto Tries to Exhaust VLT Plaintiffs

In a recent blog I explained how Justice Dymond had thrown out an attempt by ALC to have the class action lawsuit thrown out prior to certification.  He refused to "go down the rabbit hole" of endless pre-certification hearings. 

Today we found out that ALC wants to seek permission from the Court of Appeal to appeal Justice Dymond's ruling.  The very point of Justice Dymond's ruling was that the certification hearing should be the first order of business in a proposed class action lawsuit.  Now ALC wants further delay so they can appeal that ruling.

But worse is to come - ALC is also proposing to issue a Third Party Notice against six manufacturers of VLT gaming machines.   This will create more complexity in what is already a complex lawsuit, and is intended, in part, to create arguments that the claim is unsuitable for being certified as a class action.  Any way you cut it, it creates the opportunity for plenty more delay and plenty more complexity.  Delay, of course, is a defendant's friend, and the fact that all these extra steps and procedures cost money is just fine with the defendant.  After all, they have plenty of it - money gained from all the wrongdoing we allege in the claim and are trying to get the right to challenge.

People say that class proceedings level the playing field between numerous injured plaintiffs and big, powerful and well financed defendants.  They don't.  Defendants with wrongfully gained money spend it lavishly on their lawyers and take advantage of every procedural right the legal system affords them.  Representative plaintiffs have very little money, and lawyers who believe in the cause and are willing to risk a lot for the prospect of a fee down the road.  A level playing field this is not, but it sure is better than no class actions at all.

Sometimes David can defeat Goliath, and when there are a lot of Davids, the chances of defeating Goliath get even better, but it is never an equal playing field.

Atlantic Lotto Fails in Attempt to Kill VLT Class Action

Atlantic Lotto Corporation has failed in an attempt to get the court to hear an application to strike this class action lawsuit, before the hearing of the certification application.  The record for the certification application has already been filed by the Plaintiffs. 

Justice Dymond reserved on arguments for several weeks, and today handed down a decision in which he refused to go "into the rabbit hole" of motions preliminary to certification.  The key point with the judge is that he did not consider that the application had the potential to end the lawsuit.

As Judge Dymond colorfully said:

[20]  An application which cripples the action, hemorrhages the lawsuit  or  has the result of putting it on life support, may, in rare circumstances, be allowed, even if it does not kill the lawsuit.  This is not the case here.

The plaintiff class, victims of the video lottery terminal deceit, will finally get to argue their case to be certified as a class proceeding.  A long time in coming.

Money Mart Settlement

These Money Mart guys are tough customers.  We have patterned the settlement in Atlantic Canada on the Ontario settlement outlined by Justice Perrell in Smith, but the numbers involved in Atlantic Canada are not nearly as large.

The biggest legal problem we faced is that customers of Money Mart sign arbitration agreements when they deal with Money Mart.  The question was open as to whether the courts here would enforce the arbitration clause and prevent the class action from proceeding.  The plaintiffs and their lawyers did not have this problem in Ontario.  Consequently our settlement contains a major concession based on the risk of losing the arbitration issue.  If we lost on the issue, then class members would get nothing at all. 

Money Mart has a lot of money to protect and they know how to protect it.  They hire the most talented and most expensive lawyers that money can buy.  This is true in Canada, and it is true in the United States where they have corporate headquarters.  When we negotiated with their lawyers in Philadelphia last summer, Money Mart was represented by the former chairman of a 600 lawyer firm in Philadelphia.  Believe me, these guys are litigious.

The benefit of this lawsuit is that class members will get something of value now, rather than the possibility of something of greater value years from now.  I think that is what our clients want.

The components of the settlement are outlined in our press release, and in news reports, and the full details are available in the Settlement Agreement.

Optimism for Reforms at Eastern Health

I was class counsel for the members of the Breast Cancer Testing class action, and sat through the Cameron Inquiry.

On Wednesday, there was a news conference to report on progress in implementing the Cameron Recommendations, so I attended.

Many of us who sat through the Inquiry hearings were pessimistic about the prospects for change.  We saw an unrepentant old guard of health bureaucrats still in power at Eastern Health.  They expected to go back to business as usual, once the Inquiry was over.

But now I am an optimist.  The minister, Jerome Kennedy, has guts and drive, and is not easily bamboozled.  CEO Vickie Kaminski seems to have the needed substance.  And the cyclosporine incident, tragic for the victims, has provided a catalyst for Kaminski to break up the old gangs of cronies who stood in the way of change.

Now the next step is to make sure that all those pathologists on sick leave have a valid note from their doctors.

Class Action Lawyer Criticizes "Newfie Joke" Tobacco Ruling

Timing of Compensation Payments

Some class members have been inquiring as to the timing of payments and as to why there will be more than one payment.

I would expect that Category 1 claimants will receive a cheque within several weeks from when the judge releases his decision.  I cannot speak for the judge but would anticipate that the decision as to approval of the settlement will be handed down within several weeks.  When it is handed down, we have the settlement fund in an interest bearing trust account and will hand over the monies to the administrator.

The administrator would be expected to keep these monies in an interest bearing account until the distribution is complete.

The first payment will be an amount which is about half of the intended injury compensation amount.  The reason is that the ultimate payment will be partly a function of how many people claim in each category.  Not all class members in a class action settlement actually make a claim, and depending on what is called the uptake, the amount for disbursement to each claimant may be slightly more than the intended amount, or slightly less.

We must give public notice of the settlement approval and there will be a six month period for class members to apply.  The administrator will make a first payment to all those class members in categories other than 1 at that point (category 1 members will already have received a cheque).

The administrator will prequalify class members for whom we have medical records and notify them of the prequalification and the category in which they are prequalified.  We will be giving the administrator the records we have obtained.  To verify that the administrator has a class members records, you should contact the administrator at the toll free number or other address which he will provide.  We will give you a reminder to do this when the judge hands down his decision on approval and the administrator makes the toll free number known.

I understand that these delays can seem frustrating, but in something as complex as a class action settlement, delays of this kind are inevitable and outside of our control.  Thank you all for your patience.

Eastern Health Mixes Up Test Results Again

One of our breast cancer members told me about a very bad turn she had yesterday.   I'll call her Grace, not her real name, to protect her identity.

Grace got a call yesterday from a nurse telling her that the cancer doctor wanted to see her when she comes to the hospital for her appointment on Monday.  Grace said I don't have an appointment Monday, and the nurse said yes you do, you have to start radiation on your brain. 

Grace almost dropped dead - she saw Dr. McCarthy last Thursday and was told that her bone scan came back fine but that her kidneys were failing and she had to be taken off all cancer drugs but there was no cancer to worry about.  She had a panic attack and blacked out for a few seconds.  She then said to the nurse you must be wrong and told her what Dr. McCarthy had said to her previously.  The nurse said oh my I'm sorry, she had mixed up the results and should have called someone else.

Grace is a very sick woman and this only added to her stress about all this.  She wanted me to know about this terrible incident, and I am sharing this with other class members.

When Eastern Health stops mixing up individual results I'll feel a lot more confident that they have the big systemic issues fixed.  If I were Premier Williams, I'd check my chart before heading off for heart surgery ... it could be someone else's result.

Governments Sues Bill Murray to Recover Money Stolen to Feed VLTs

A $500 a day VLT habit!

Almost lost among the ugly details the press has reported about Bill Murray's guilty plea to theft of an estimated $400,000, is the fact that most of the money went into VLTs.  At a rate of $500 a day, $180,000 a year.

Looks to me like Murray might have a defence to the government's lawsuit - the government already has the money!  Let's see how this works.  Murray steals from the taxpayer; VLTs run by Atlantic Lotto steal the money from Murray; the government takes the VLT money from Atlantic Lotto; the government sues Murray to recover the stolen money, which was poured into VLTS, which was paid to the government ... and so on.

Who are they trying to kid?

Court Favors Plaintiff in Pension Class Action Against Memorial University

Ches Crosbie interviewed on breast cancer testing class action compensation and fees

Not Giving Up on VLT Class Action

On Saturday December 19, 2009 the Telegram ran a front-page story on the Piercey family's renewed effort to obtain class action certification.  The story was called "Crosbie not giving up on VLT class action", and the reporter was Barb Sweet. 

The earlier attempt to obtain certification was based on the Trade Practices Act.  Justice Dymond ruled that as a crown corporation, the Trade Practices Act did not apply to Atlantic Lottery Corporation.  So, now we are back, this time with allegations based on breach of the Criminal Code, and breach of s. 52 and s. 36 of the Competition Act prohibiting misleading advertising.  Also, unjust enrichment, breach of contract, and breach of duty to warn in tort.

We hope to have a date for the certification hearing set in a case management meeting with Justice Dymond, on January 18, 2010.  Certification is what determines whether a class action can go forward or not.

You can read the Telegram story at the above link.

Can the Civil Justice System Rise to the Challenge of VLTs?

The social and public health problem presented by Video Lottery Terminal use is more intractable than the social and public health problem of tobacco use in the 1990s.  In the case of tobacco, enormous industry propaganda and lobbying created a legislative deadlock over meaningful action, and the civil lawsuit stepped into the void, resulting in a global settlement in the United States in 1997.  Nowadays, the cigarette industry no longer argues that their product is safe.  It is a generally admitted fact that cigarettes kill half of all consumers when used as intended.  About all the industry can say in defence of tobacco use now is that it is a legal product.  Much of the credit for the "outing" of big tobacco lies with those enterprising U.S. civil justice lawyers who used the civil justice system to expose the truth about tobacco and make wrongdoers pay. 

The legal challenge posed by the social scourge of VLTs is even greater, because it is the government itself which is responsible for establishing VLTs in Newfoundland and Labrador in the early 1990s, and for promoting VLTs and feasting on VLT revenues ever since.  Atlantic Lotto Corporation, the government agent for managing and controlling VLTs in the province, is its own regulator, and the government is a shareholder raking in profits in the tens of millions each year, so don't expect that a solution to this scourge is going to come from government.  The VLT problem has never been subject to the machinery of democracy in this province.  It has never truly been an election issue, has never been subject to a referendum as in New Brunswick, and has never been subject to formal hearings with meaningful public participation.

If there is to be a meaningful legal response to the VLT problem, then it will have to come from the class action lawsuit.  According to the Supreme Court of Canada, class action suits are about access to justice and deterrence of wrongdoers.  In passing class action legislation, Canadian policymakers have chosen to delegate civil oversight to lawyers and their clients, who are prepared to take on the risk of prosecuting cases they believe will succeed against wrongdoers who cause widespread harm.  The function of class actions is to fill a gap in the system of public interest regulation and oversight which can't be filled in any other way.

Today we filed our certification materials to be recognized as a class action.  The class action is taken by Keith Piercey on behalf of his daughter Susan's estate, and is for the benefit of the class defined as follows:

"Natural persons and their estates, resident in Newfoundland and Labrador, who, during the Class Period, paid the Defendant to gamble on VLT games, excluding video poker games and keno games, in Newfoundland and Labrador. 

The Class Period is the period from six years before the bringing of this action, up to the opt-out date set by the Court in this action.

Excluded from the class are directors, officers and employees of the Defendant." 

Our court documents are available elsewhere on this website.  We will meet with Justice Dymond in mid January to set a date for the certification hearing.

The problem with a VLT or continuous electronic gambling class action is that no one has ever done it before, at least in the common law world.  The recipe for success has not been invented yet.  American lawyers have attempted but failed.  To the best of my knowledge, no other proposed class action with any realistic possibility of success has been taken in the other Canadian provinces outside Quebec.  The old adage comes to mind, "you can tell the pioneers by the arrows in their backs."

But I believe that anyone who looks in an objective and fair-minded manner at the complaint we have filed will conclude that Mr. Piercey has a righteous case.  We have filed evidence that VLTs are an inherently dangerous product - see the affidavit of Dr. Harrigan.  The question is whether the civil justice system has enough inherent vitality and flexibility to fill the regulatory gap left by a governmental apparatus which is in hopeless conflict of interest.

Light Cigarettes Appeal: Judge out of step with modern policy

On behalf of Victor Sparkes, I am arguing the light and mild cigarettes deceptive practices appeal on Wednesday and Thursday.  The proposed class action seeks a monetary remedy against Imperial Tobacco for deceptively marketing light and mild cigarettes as a more healthful alternative to regular cigarettes.  Here's how I will introduce the appeal. 

Many people who read the decision of the learned judge below, get an impression that he just did not see this proposed class action as a legitimate civil action.

With respect, we say that the learned judge was led into legal error by his adherence to an outmoded model of the legitimate purposes of civil actions.  His mindset or philosophy of civil litigation is anchored in what the Ontario Law Reform Commission called the conflict resolution model.  We say that with the passage of the Class Actions Act, the legislature has rejected this model and has adopted the alternative, behaviour modification model.  By adopting this enactment, the legislature has removed the choice of model from the courts.  With respect, the learned judge below applied a model of the purposes of civil litigation which it was not open to him to apply.  His choice was out of step with modern litigation values and it influenced the policy choices he made in interpreting not only the Class Actions Act but the Trade Practices Act as well.

Two significant developments have occurred since certification was argued below, which reflect on the legitimacy of this action.  One is national, the other local.

The national development is that every province except PEI has passed a statute to create a civil cause of action for an aggregate damages remedy against tobacco manufacturers.  The Alberta legislature is in the process of enacting such a statute.  Ontario commenced litigation against tobacco manufacturers this fall.  This development is huge.  British Columbia and New Brunswick are already in litigation and every other province has announced an intention to follow suit.  This means that there is now a public policy consensus in Canada that the civil action for aggregate damages is a legitimate policy tool of tobacco control.  Mr. Sparkes' action on behalf of consumers can no longer be viewed as something odd or unusual.  It is now unquestionably in the legitimate mainstream of Canadian public policy.

The local development is the recent settlement of the Breast Cancer Testing Class Action.  The Inquiry into hormone receptor Testing could make recommendations but had no jurisdiction to follow up on them.  An important part of this settlement is class member presence on an oversight committee and the joint selection of an independent expert to perform an audit of the implementation of the Inquiry recommendations and made a public report.  Many would see the Breast Cancer Testing Class Action as an example of the benefits foreseen by the foundational report of the Ontario Law Reform Commission on Class Actions.  Many would see it as an indication of the vital role of the civil action in the machinery of Canadian Justice, and as a demonstration of the legitimacy of the class action on the local scene. 

Our legal briefs are available at these links.

• Memorandum of Argument on Leave to Appeal
• Merits Factum
• Merits Factum in Reply
• Memorandum of Argument on Interlocutory Application
• Memorandum of Argument on Certification Issues

Breast Cancer Settlement: How Much and When Paid?

Class members have asked us how much is the settlement in individual cases, and when will the settlement moneys be paid to the victims.  First, membership in the class is determined by the class definition approved by the court:

(a)     Patients, including their estates, who underwent ER (estrogen) and PR (progesterone) receptor tests in which their breast tissue samples were tested at the Defendant’s hospital during the Class Period; and

(b)     Persons who have a claim for loss of consortium and loss of guidance, care and companionship on account of a relationship with a person in paragraph (a).

The Class is restricted to residents of Newfoundland and Labrador.

The “Class Period” is defined as: May 1, 1997 to August 8, 2005, or such other dates as may be approved by the court.

Patients who gave samples at Clarenville between 1999 and 2005 would not be included, because their specimens were sent to Mount Sinai for testing and not to Eastern Health.

The settlement structure is made up of five harm categories and more seriously injured patients will receive higher payments.  Details of how much is proposed to be paid in relation to each injury category will be announced after a scheduled case management meeting with Justice Thompson on December 1. 

The settlement will be funded by December 29 and the hearing to obtain court approval could occur in late December or early January.  Class members will be expected to submit an application for compensation, and cheques may be available commencing 30 days from the date of approval, should approval be granted.  The 30 day period is intended to allow for any possible appeals.  The exact timing of these events is subject to the court.

The application process is intended to be straightforward.  Most class members should receive written notice of prequalification for a compensation category based on such information as whether the class member changed ER/PR positivity status on retesting, whether the disease recurred or not within 10 years of the date of diagnosis of breast cancer, and whether the patient was stage IV (already metastasized to distant organs) on diagnosis. 

Class members who have hired Ches Crosbie Barristers to represent them individually, can expect us to assist them in the process of applying for compensation in the injury category that applies to them.  For example, should a class member disagree with the assignment of her or him to a particular prequalification category, we would be able to check the correctness of this against the medical chart which we have in our possession.

Patients who have passed away (ie. their estates) are entitled to compensation.  Application may be made by the executor or administrator or failing that, by beneficiaries of the estate. 

We ask that further questions of a general nature be posted here in the form of a Comment.  We will post answers to these questions so that the answers are available to be viewed by class members generally.

The Shocking Truth About Wrongful Death Claims: An Open Letter to the Premier

Last weekend I attended sad visitation with the family of Donna Howell, perished at the age of 53 from generalized breast cancer.  Donna was one of those many patients of Eastern Health whose hormone receptor testing was bungled.  She didn’t get Tamoxifen.

It was not the time to tell Donna Howell’s husband Darryl the shocking truth:  Yes Premier, in your province it is cheaper to kill than to main.

But you already know this.  You were once a personal injury lawyer, and a very good one.  Once, you too revolted against the shocking truth that dead people are worth less in money damages than the living.  Your educated lawyer’s conscience still revolts at this truth.

In your province, the law of compensation for intangible losses surrounding death has not changed since the days when the British Empire permitted slavery.  Our still-existing law stems from a time when life was not just cheap, it was worthless.  But as an educated lawyer, you know this.

In the rest of Canada, the wrongful loss of the society and comfort of a loved one is compensated and has been for decades.  As an educated lawyer, you know this.

In the rest of Canada, the pain and suffering of a victim of wrongdoing is compensated even though the victim dies.  As an educated lawyer, you know this.

Many times have courts, even the Supreme Court of Canada, condemned the wrongful death laws we still enforce.  Courts have condemned the laws we enforce as inhuman, barbaric, anachronistic, and out of step with modern conceptions of fairness and justice.  As an educated lawyer, you know this.

As an educated lawyer, you know that modern conceptions of fairness and justice demand that of our laws of wrongful death be reformed.  Better to reform these laws in the Legislature; but the time has come for court-driven law reform if government fails in the task.  Many more like Donna will perish while court process grinds toward reform.

Donna’s husband Darryl Howell still has faith in your commitment to fairness and justice.  Others will wait and see.

Does the Public Support Members of the Breast Cancer Testing Class Action?

Eastern Health to Put Scandal Behind It: Here's How

Vickie Kaminski wants to put the breast cancer testing scandal behind her. That's what the Eastern Health CEO told the annual general meeting Wednesday. "The time has passed for Eastern Health to be defined by one issue", she said.

The Cameron Inquiry was about truth and reconciliation. The truth came out, and it was ugly. Reconciliation remains elusive.

Eastern Health will not put this scandal behind it until it achieves full reconciliation with injured patients by earning the right to be trusted, and by making financial reparation. This is how we close the circle of reconciliation in an advanced society based on respect for human rights. Reconciliation requires the courage to make amends, and there can be no moving on until amends happen and are seen to happen.

More truth will help with reconciliation too. Many times have clients told me that they "don't want this to happen to anyone else". Beginning in March 2009, we have asked for information from Eastern Health on the progress of several important recommendations of the Cameron report, for example, retesting of the positives. We still have no formal answer. (I don't blame Eastern Health's lawyers for this, they can only work with the information they are given.)

That's why Verna Doucette has asked us to demand an accounting from Eastern Health on progress on the more important Cameron recommendations as an aspect of settlement.

Verna is not well, due to complications of treatment, and has not been willing to make herself available for public comment. She told me yesterday that she will come to St. John's from her Port au Port peninsula home to be available for press interviews on Tuesday, October 27, 2009 before the mediation begins. She is not a public person and I know this decision to speak publicly requires courage.

Let's see matching courage from Eastern Health. The courage to make amends.

Class Member Comments on Government Absence

Ladies: Based on our recent communication from Mr. Crosbie regarding the upcoming mediation talks, it's time to let your voice be heard! Don't let all these months and years of worry go for nothing. Don't let Premier Williams back down on his word! Contact him and contact the media to make sure they keep on top of this story. Don't be swept under the rug - make a noise!

Light Cigarettes Case Nears Appeal Hearing

A case taken by Victor Sparkes against Imperial Tobacco is nearing the appeal hearing on September 14 in a context of heightened social concern over the abuses of the tobacco companies.

Ontario and Quebec have passed enactments aimed at assisting healthcare cost recovery, both passed in June of this year. Alberta introduced a bill and expects that it will be enacted this fall. That means that the great majority of Canadian provinces have resolved to sue the tobacco industry for healthcare-related costs based on fraud and deception perpetrated over the last 50 years.

To come back to Mr. Sparkes' action against Imperial Tobacco, this action was taken in Newfoundland and Labrador as part of a broad social movement to hold tobacco companies financially accountable. By driving up the price of cigarettes, society puts them out of reach of the teenagers whom the tobacco companies constantly attempt to recruit as future paying consumers. The personal health costs and personal injuries which result have been documented endlessly and are a major public health problem and source of product liability injuries in this and other advanced countries.

When Mr. Sparkes applied for certification of the class action against Imperial Tobacco, the judge dismissed on the basis of technical arguments surrounding the consumer protection statute on which the action relied. Imperial Tobacco filed a Brief stating that the judge made a finding that the words of the Act were clear and unambiguous. We disagreed and pointed out that he did not make any such finding, and filed a Brief in Reply. You can see the Brief in Reply at this link.

The Court has asked us to obtain permission to file the Brief. Our Rules of Court do not expressly provide for the filing of a Brief in Reply. The Rules of other advanced jurisdictions do so provide. Our application and brief on the application to file the Reply are available on our website.

It would be a lot simplier if the Court of Appeal followed the lead of other advanced jurisdictions and put in place a rule which expressly allows for filing of reply.

Eastern Health Communication Blunder

Here is a press release which I think reflects the views of the breast cancer testing class members.

 EASTERN HEALTH DAMAGES TRUST AGAIN

The release late Friday of the information that another 38 breast cancer patients were found who need retesting, is a further example of “the corporate spin doctoring by which Eastern Health created the crisis of confidence in health care which led to the Inquiry”, lawyer Ches Crosbie said Monday.

 Ches Crosbie Barristers is court appointed lawyer for the members of the Breast Cancer Testing Class Action.

 “I was prepared to give Eastern Health the benefit of the doubt, but this shows their priority is still to minimize damage to the organization.  Patients come second”, said Mr. Crosbie.  “This is not yet a patient centered organization.”  Eastern Health initially refused further comment, but under pressure agreed Sunday evening to hold a press conference this morning.

Mr. Crosbie added that as court appointed lawyer for the people involved, he would have expected to be informed of the situation before a public statement was made.

Mr. Crosbie added that this new communications blunder has deepened the damage to patient trust.

CHES CROSBIE BARRISTERS
169 Water Street, 4^th Floor
St. John’s, NL  A1C 1B1
Telephone: 579-4000 or 888-579-3262
Facsimile: 579-9671
Email:  ccb@chescrosbie.nf.net

You can see the Eastern Health press release here, and CBC news coverage here.

Comments to my blog on the "divide and conquer" approach were very effective and helpful in preparing for mediation.  Your comments on this latest conduct would also be valuable.  The question:  as a breast cancer patient, what is your reaction to Eastern Health's communications strategy regarding the 38 newly discovered patients?

Deceived out of your life: VLT documentary airs on CBC

The largest easily avoidable source of injury and death in Atlantic Canada has to be VLT gambling, and this is brought to you by the same people who are supposed to protect you from criminals – Atlantic Lotto Corporation.  Now documentary film maker Barbara Doran is bringing a penetrating exposé of the scope of damage and injury caused by VLTs.  “Playing The Machines”, is her documentary to be shown on CBC News World “The Lens”, 11:30 Newfoundland time on March 24. 

You will see mention of how I represented the Piercey family in an attempt to use the Trade Practices Act in a Class Action against ALC.  The action was dismissed because ALC, as a government agent, was felt to be immune from consumer protection legislation!  Well, it won’t be immune from the Canadian Charter of Rights and Freedoms, and that is exactly what is brought into play in the class action Statement of Claim I served against ALC in early March. 

In the meantime, while the next chapter in the litigation over VLTs in Newfoundland and Labrador  unfolds, make sure you take in this wonderful documentary directed and written by Barbara Doran.  You can view Barb’s background information on the film here.

Class Member Comments Eloquent and Compelling.

The commentary and response to my blog yesterday has been emotionally compelling and eloquent.  To pick quotes from some comments at random: 

“I have 4 beautiful children who see me as strong and I die every day as I think of the women who have succumbed and who will succumb to this disease because of ERROR.  I want to have trust!!! We will all eventually die, but not this way – hopeless and helpless due to ERROR!!”

“This is anguish and distress brought to its highest degree.  Why these people at Hiroc seem to think that patients in this category should not be compensated boggles my mind!”

“Needless to say the anxiety and stress has been unbearable.  I have not been able to concentrate on anything but this failure in our health system ever since.  My home life has been affected and I have not been able to return to work.”

“I was just starting to relax a bit in the knowledge of everything possible having been done for me when this dealt me a blow that I will probably never recover from.”

“I will question every result I ever have done again and every time I talk about it I could sit down and cry…. Who can say if we will ever be able to forgive and forget.”

“The mental torment and stress that has been my companion since my diagnosis in 2004 cannot be measured by a court settlement.  I was given the right diagnosis and treatment but the way that Eastern Health chose not to inform patients…. leaves me quite hollow. Each day I think about those poor women who were not given proper treatment and I think about their families.”

The comments and response to my blog are testimony to shattered faith and confidence and lasting emotional trauma, even among those patients whose retesting confirmed an earlier result.

I have not been through what cancer patients have been through, whether their testing was confirmed or changed on retesting, so the testimony of class members in the form of the comments helps a lot, both now and down the road as we approach the mediation.

Perhaps there is even some comfort to be gained by sharing experiences.

All comments by class members are carefully read by me and will be used in formulating the approach to settlement. They will have an influence on the insurer too.  So please comment if you have not already. I am keeping track of the number of comments and look forward to making my donation to Daffodil Place! And I am raising the donation to $25 for every post!

(Posting a comment on my blog is easy, but first you must register for an account.  After you click the link to create an account it will ask you to fill in some basic information.  This information includes your name, e-mail address, username and password.  If you wish to remain anonymous, please don’t include your real name in this information.  If you choose to insert your real name, your name will be displayed at the end of your comment.  So, when wanting to remain anonymous, please use an alias.)

Eastern Health to Divide and Conquer?

Several clients have e-mailed wondering if HIROC, the Eastern Health insurer, plans to exclude certain types of claims or class members from compensation.  One class member was quoted in the news over the weekend as describing this strategy as “pitting sick people against sick people”. 

An e-mail from a class member today stated that although she did not have a change of test result, she has had to work hard to not “give up and let this eat me alive”.  She asks “do persons like me have a case too?”

In our opinion, persons who did not have a change in test results do have a good claim for mental and psychological distress and anguish.  I will explain this a bit more tomorrow, and I intend to send out an e-mail to see what class members generally, think of the validity of the mental distress claims.  A good way to canvas opinion in the group is by blog comments on the questions which I will raise in my blog tomorrow.  If you have a comment you would like to post on today’s blog, please do—it helps me and it can be persuasive to the other side too.

And as an added bonus, I will Donate $10.00 to Daffodil Place for EACH blog comment posted!  (Remember these are public comments.  If you wish to preserve your privacy, you don’t have to use your real name.)

More on the subject of damages for mental distress tomorrow.