Over the last day, the web-site maintained by Deloitte in its role as Monitor for JTI-Macdonald's creditor protection and the equivalent site maintained by Ernst and Young for Rothmans Benson and Hedges have been enriched by thousands of pages of material submitted by the government of Ontario. (At the time of writing, the equivalent material was not yet posted on the websites of the Imperial Tobacco Monitor (FTI Consulting).
Almost a decade has passed since Ontario filed a claim against tobacco companies, seeking reimbursement of the health care costs that resulted from their wrongful actions. You can be forgiven for not knowing much about this suit -- other than the periodic ruling that surfaced on the CANLII database of judgments, Ontario government lawyers and leaders have kept a studiously low profile.
But within the 42-page Factum and 1168-page Motion Record filed in anticipation of next week's hearing on the Comeback Motions, a lot more about province's intentions have been revealed.
Ontario wants its case to proceed - but Quebec's case should continue to be stayed.
In its Factum, the government of Ontario asks this Ontario court to delete those parts of the orders issued in March which stall Ontario's lawsuits. It promises that doing so will not result in any transfer of money.
2. Ontario seeks Orders varying the JTIM Initial Order, the ITCAN Initial Order and the RBH Initial Order to authorize and permit Ontario to continue the Ontario HCCR Action against all fourteen of the defendants in the Ontario HCCR Action with the exception that the taking of any future proceedings to enforce any judgment and/or collect any amount owing or found to be owing by JTI-Macdonald Corp. (“JTIM”), Imperial Tobacco Canada Limited (“ITCAN”) and/or Rothmans, Benson & Hedges Inc. (“RBH”) in the Ontario HCCR Action shall be stayed pending further Order of this Honourable Court.
Like other plaintiffs, the Ontario government is calling foul about the use of the CCAA to suspend litigation.
13. Over the past decade, Ontario has invested a tremendous amount of time, money and
effort to prosecute the Ontario HCCR Action in order to hold the thirteen defendant tobacco
companies and the CTMC accountable for their conduct over the period from 1950 to the
present. By obtaining ex parte the stays of the Ontario HCCR Action, JTIM, ITCAN and RBH
have used the CCAA as a sword to cut down Ontario’s efforts and cause delay for an indefinite
period of time of likely several years and cause serious prejudice to Ontario.
Tidbits
These documents shed a little light on the lawsuit...
Ontario was anticipating that its trial would start in 2020/2021
14... [the stay will undo court efforts] to move the Ontario HCCR Action
forward and prepare it for the projected trial commencement date of late 2020/early 2021.
A trial of one year was foreseen
80. Ontario estimates that the trial of the Ontario HCCR Action may take approximately one year.
The role of GRE and other third parties was set to be aired
28. In May, 2011, ITCAN, Philip Morris International, Inc., Philip Morris USA Inc., Altria
Group, Inc. Rothmans Inc. and RBH commenced third party claims against various corporations
and individuals whom they referred to as “Aboriginal manufacturers”. These third party claims
have not been discontinued; ,... During the Case Management Conference on March 8, 2019, Master Short set a timetable for the
parties to deliver their motion materials in regard to GRE’s motion to strike. Also during the
Case Management Conference on March 8, 2019, counsel for several other third parties advised
that they are in the process of obtaining instructions regarding whether to bring a motion to strike
the third party claims against them.
The court has been holding monthly meetings between litigants
42. Since January, 2018, the parties have participated in monthly Case Management
Conferences conducted by Master Short on the second Friday of every month.
Eight million tobacco industry documents have been handed over to government lawyers
48. The defendants have served Ontario with productions totaling in excess of 8 million
documents.
Eight expert reports have been written
On or about June 15, 2018, Ontario served on the defendants the report of five experts
whom Ontario retained to provide opinion evidence to establish liability on the part of the
defendant tobacco companies.
Ontario is claiming $330 billion in costs.
61. On January 31, 2019, Ontario served the expert report of Dr. Glenn Harrison (“Dr.
Harrison”), an economist retained by Ontario, who has calculated the smoking attributable
expenditures due to environmental tobacco smoke (second-hand smoke) in Ontario to be
between $9.391 billion and $10.913 billion in present value 2016 dollars, depending on the
assumed end-date for the breach exposure.
After 9 months of discussion, the disclosure of individual medical records was coming up for a hearing
69. During the Case Management Conference held on October 12, 2018, Master Short
advised that he had set aside June 4, 5, 6 and 7, 2019 as tentative dates for the hearing of a
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motion by the defendants to obtain a statistically meaningful sample. The issue of the
defendants’ statistically meaningful sample motion has been discussed during the monthly Case
Management Conferences held on the following dates: August 10, 2018; September 14, 2018;
October 12, 2018; November 9, 2018; December 14, 2018; January 11, 2019; February 8, 2019;
and March 8, 2019.
