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