Sunday, 16 June 2019

Tobacco companies ask for a further 6 month immunity from lawsuits.

In March, Canada's 3 large tobacco companies asked for (and got) a month-long time-out on all of the litigation facing them. As that neared expiry, they asked for (and got) an additional three month grace period during which they did not have to pay the court-ordered damages to Quebec smokers, nor did they have to respond to the legal claims made by provinces seeking compensation for health care costs.

This immunity period expires on June 28th - and the companies have now given notice that they will be asking for an additional six month grace period to be given to them.

Both JTI-Macdonald and Rothmans, Benson and Hedges made this request public this weekend, stating that Imperial Tobacco would be making the same request. (This request is scheduled to be heard before Justice Thomas McEwen on June 26th. Parties are expected to file material with the court at least a week before the hearing -- meaning that more paper is likely to be available by June 17th).

Within these requests are a few snippets of interest:
  • There have been no negotiations yet between the companies and their claimants. JTI says that lawyers have had initial discussions with many of those suing it (but not the province of Quebec) "in an attempt to commence resolution discussions". [Emphasis added]
  • Mr. Warren Winkler, who was appointed as a mediator in the process, has asked the companies to negotiate, and has asked the companies to "deliver a mediation brief to him on August 1, 2019."
  • Any settlement process is expected to extend well beyond 2019. ("RBH is of the view that the complex process to complete the mediation and to develop and implement a CCAA plan is unlikely to be complete before year end and could take more time beyond that.")
Other material in circulation hints at the continued opacity of the discussions that will take place between the provinces, the mediator and the tobacco companies.
  • The mediator (Warren Winkler) is permitted to communicate in private with Justice McEwen, but the content of his discussions with all parties will not be made public:
    "All statements, discussions, offers made and documents produced by any of the parties in the course of the Mediation Process shall not be subject to disclosure through discovery or any other process; shall be confidential; shall not be referred to in Court and shall not be admissible into evidence for any purpose, including impeaching credibility or to establish the meaning and/or validity of any settlement or alleged settlement arising from the Mediation Process."
  • The companies intend to insist that business information they share with the provincial governments in support of their settlement offers be kept from public view.
    "JTIM, along with Imperial and RBH, are in the process of negotiating and finalizing a form of non-disclosure agreement that will permit stakeholders to access requested commercially sensitive and confidential information" (JTIM notice June26)