Wednesday, 23 August 2017

The Knight delay: inordinate and tactical -- but excusable too. Imperial Tobacco's request for dismissal is turned down.

Two months to the day since a hearing in Vancouver's ultra-modern court house, Justice Nathan Smith today issued his decision to reject Imperial Tobacco's request that the Knight class action be dismissed because of the long delay in moving the trial forward.

As explained here earlier, the Knight case is a class action filed against Imperial Tobacco 14 years ago, asking the court to order ITL to end the marketing of Player's Light and other light cigarettes and to order it to compensate smokers like Kenneth Knight for the deceitful marketing of these cigarettes as being less harmful.

The case was certified as a class action (in 2006), but after 2009 it was essentially put on ice by the plaintiffs' legal team, lead by Doug Lennox. It was his decision to put the case back on track in October 2016 (by asking the Court to allow some documents to become part of the trial record) which prompted Imperial Tobacco to say that this delay was "inordinate and inexcusable" and would hinder their right to a fair trial, especially because some key witnesses had died in the interim.

Justice Smith accepted the facts much as Imperial Tobacco stated them, but he did not accept their view of the impact.

He acknowledged the delay was lengthy ... and that it was inordinate and a tactical call by the plaintiffs' lawyers.
It has been 14 years since the action was started, 12 years since it was certified as a class action, and 10 years since the products at issue were last sold in British Columbia. Prior to October 2016, the plaintiff had taken no steps in the action for seven years. .... I conclude that the delay must be seen as inordinate.

However --- he found that this inordinate and tactical delay was nonetheless excusable in the context of the Létourneau case.
The plaintiff reasonably and sensibly awaited the outcome of the Létourneau action in order to save litigation costs by waiting to see if the verdict pushed the defendant into bankruptcy or a national settlement or, alternatively, to benefit from the lessons learned from that action, including a review of the available evidence.

As for the prejudice caused to Imperial Tobacco, he expressed minimal sympathy. He noted that despite facing both class action and provincial lawsuits which made reference to light cigarettes, the company had made no efforts to preserve the testimony of these "now-dead" witnesses, and that the absence of witnesses was a problem that would affect both sides.
(I)f those witnesses were so crucial to the present litigation, I suspect they would be at least important to the Létourneau action, the health care cost recovery suit in this province, and to all of the other such suits in other provinces. Yet, there is no evidence that the defendant took any steps to preserve their testimony in defence of this and all similar claims after first being notified of these types of claims almost two decades ago.

The last consideration addressed by Justice Smith was what was fair for Kenneth Knight and all the other purchasers of Player's Lights. On this "most important and decisive question" he ruled that the seriousness of the allegations and the rights of the class members weighed against granting the defendants request.
The delay in this case was a tactical decision made in good faith by plaintiff’s counsel to await the results of Létourneau. The plaintiff, to say nothing of as yet unidentified class members, was not personally responsible for that decision and I doubt had any role in making it. I find it would not be in the interests of justice to deny the claim based solely on delay.

Justice Smith, who also adjudicates the B.C. government claim, has now been on the tobacco file for 4 years. A blink of an eye in this business!

(Earlier this month, the Times Colonist of Victoria, B.C. published an editorial "Tobacco lawsuit still drags on". The editors wondered "how it could take the better part of two decades to try a lawsuit, with the end still nowhere in sight?" and then answered their own question by suggesting there had been  "foot-dragging on both sides". )