Class Action Lawyer Criticizes "Newfie Joke" Tobacco Ruling

"Tobacco Lawsuit Dismissed":  Ches Crosbie interviewed by Ramona Deering on CBC Radio Crosstalk, March 24, 2010.

Ms. Deering:         I was mentioning a few minutes ago that the Newfoundland and Labrador Court of Appeal has ruled that a class action lawsuit against Imperial Tobacco cannot go ahead.  Ches Crosbie is very unhappy about that decision and, if all holds, I believe he is with us on the line now.  Mr. Crosbie, can you hear me?

Crosbie, QC:         Yes I can.  Look, you know, you're probably always unhappy when you're on the losing side, but there are a few aspects to this that make it unusual.

Ms. Deering:         What was the premise of the suit?

Crosbie, QC:         The premise of the suit was it was an attempt to get certified because if you're suing big tobacco, in this case Imperial Tobacco, you're not going to do it by yourself, so either it's a class action or forget about it.

Ms. Deering:         And why sue Imperial Tobacco?

Crosbie, QC:         Well the theory of this was not focusing on personal injuries caused by smoking, such as lung cancer or heart disease. It was focused rather on what we allege to be deceptions around the marketing of light and mild cigarette brands which were presented to the public in such a fashion as to lead them to believe that they were a more healthful alternative to regular cigarettes, which they were not.  And that was a deception.  So, it was under a consumer protection statute and the remedy would have been to seek a disgorgement of income or profits earned from that deception.

Ms. Deering:         And how many people in Newfoundland and Labrador had signed on to that class action suit?

Crosbie, QC:         We had several dozen people who inquired and registered with us, but it wasn't the kind of situation where, you know, we were looking for people to say yes I'd like to support the suit.  If we got certified then, you know, the issue would come up with people wanting to know how they might participate in any overall global settlement.  But we were a long way down, were a long way away from that.

Ms. Deering:         But now the Newfoundland and Labrador Court of Appeal has said that you cannot pursue the class action lawsuit.  Why not?

Crosbie, QC:         Well it came down to a matter of interpretation of what we've had since the late 70s as consumer protection statute, it's called the Trade Practices Act, many other provinces around that time adopted similar acts.  What's happened is, the Court of Appeal has just said or confirmed that our Trade Practices Act, which is supposed to protect consumers, requires that you must be in a direct relationship, what lawyers call privity, with the person that you want to use the Act to assist you to sue, and that includes manufacturers.  So the bottom line is our consumer protection legislation does not permit Newfoundlanders to sue manufacturers because they're not in a privity relationship with manufacturers.  Now why that would be the case, why the legislature would bring in a consumer protection statute aimed at getting rid of impediments in the old common law, impediments to consumers exercising their rights easily and with some chance of success against manufacturers, was not explained in the decision.

Ms. Deering:         Is this class action suit able to go ahead in other provinces?

Crosbie, QC:         Yes, there's a similar action against Imperial Tobacco taking place in British Columbia, it has not been a problem there.  But I can tell you that to the best of my knowledge this problem, this requirement of privity, this situation whereby the consumer protection laws don't allow consumers to sue manufacturers, that does not exist to the very best of my knowledge in any other province in the country.  So, you know, I think you could fairly say that it leaves us in something of a legal backwater.

Ms. Deering:         And so what are the implications beyond this particular case?

Crosbie, QC:         Well there's a huge hole in the network of laws that are intended to give consumers protection in the exercise of their rights against unscrupulous marketers or deceptive marketers or manufacturers of products which deliver less than they promise or which are marketed in a deceptive fashion.

Ms. Deering:         Mr. Crosbie you've been quoted as saying that the Court decision is like a Newfie joke.  Why say that?

Crosbie, QC:         Well you know, it's so frankly strange when you look at the legal scenary in the rest of the country that we would have in our legislation intended to protect consumers, preserved the very doctrine that all of these Acts have been thought to be aimed mainly at getting rid of, namely this privity doctrine.  When you can't sue manufacturers for deception under a consumer protection statute, well that's a very big hole in the statute, and when you're the only province where that problem arises, then I guess you could say that's a bit of a Newfie joke.

Ms. Deering:         What do you do now?

Crosbie, QC:         Well, you know, there is an amendment to this Act and they renamed it the Consumer Protection Act last year, that's our local legislature, they did tinker around with some of the wording.  However I am not at all confident that another court interpreting this new wording in the Consumer Protection Act will not come to the same conclusion.  What you're supposed to do, and as far as I'm concerned, and it was a submission in the Court of Appeal, the law says that it is mandatory and obligatory for a court not simply to look at the text of an Act and say, ah it's clear to me it means this or it means that, they are supposed to take a purposive approach and a contextual approach, ask what was the Act intended, what evil was it intended to remedy, and what was the context in which it came into being, what were the problems that legislatures were trying to deal with at the time.  This interpretation, which did not follow that mandatory methodology of purposive and contextual interpretation that I just mentioned, this decision has left us with a huge hole in our consumer protection laws.

Ms. Deering:         Mr. Crosbie I want to thank you for your time this afternoon.

Crosbie, QC:         Yeah, my pleasure.  Maybe the legislature will take notice and do something to fix it.  It's a bit late to help the lawsuit against Imperial Tobacco, which is too bad.

Ms. Deering:         Ches Crosbie is a lawyer in St. John's.