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.