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

 

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

If the Telegram editorial from Thursday represents public opinion, then public opinion favors full and fair compensation for injured class members and doing it now.  This can be done only by government.

We have formed a small group of class members to serve as a consultative committee to Verna Doucette, the representative plaintiff, and this group will begin regular meetings next week.

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.

 

Truth and Reconciliation at the Minister's Press Conference

This is an open call to breast cancer patients to attend the Minister of Health’s press conference tomorrow.

The Minister will hold a press conference and release the Report of the Commission of Inquiry into Hormone Receptor Testing at 2:00 p.m. Tuesday at the ground floor Confederation Building Media Centre.  In order to accommodate press deadlines, I will be available to the press for interview right after at the same place.

Members of the public are welcome to sit in on the press conference and I would urge anyone who can attend to do so.  

We know the truth, now it is time for reconciliation.  Reconciliation requires taking responsibility for choices. Don’t allow Eastern Health to ignore your rights again. Come to the press conference, if not for  yourself, then for those who no longer have a voice.  You don’t have to talk to the press. Just your presence will mean they can’t forget who this is all about – the patients.