It was clear from the outset that she was headed for rejection -- and indeed the next day his handwritten thumb's down was circulated to the dozens of law firms involved in these CCAA proceedings.
Yesterday, his reasons for that decision were also circulated. They are a brief 22 paragraphs taking up only 3 pages.
Despite their brevity, his ruling gives insight into his view of the issues before him. By my read, he expects that the provinces should abandon their lawsuits in favour of negotiating an arrangement that is acceptable to tobacco companies.
Governments will never receive the compensation they are seeking.
[7] The Ontario Action has been on-going for approximately ten years. Ontario has recently obtained court approval to amend its statement of claim to seek damages of $330 billion.
[8] By anyone's estimate it is an extremely significant lawsuit. It will take approximately one year or more of trial time. It raises the issue as to whether provinces can recover damages for health care costs expended with respect to smoking-related diseases. The other provinces also have litigation pending seeking the same relief, all of which are currently stayed. (emphasis added)
Negotiating with the companies takes priority over allowing courts to decide where justice lies.
[14] If Ontario was allowed to proceed to trial with an anticipated trial date, perhaps as early as 2021, it would significantly distract Ontario and the Applicants from the CCAA proceedings. There is no doubt that the pre-trial and trial processes would be very expensive exercises which would divert significant time and resources away from settlement discussions.
[15] This CCAA process is at its very early stages. It must be given an opportunity to evolve and succeed without multiple, significant, expensive distractions.
The CCAA process should not be seen as another tactic of the companies to avoid or delay accountability.
[16] Certainly the balance of convenience as between all stakeholders favours keeping the status quo in place. I reject Ontario's submissions that none of the Applicants have disclosed any meaningful or proposed restructuring plan that will be put at risk if Ontario is permitted to continue. Such a submission is entirely premature in light of the stated goal of the Applicants to use their best efforts to resolve the claims against them. While one can argue that the bona fides of this intention remains to be seen, it is entirely premature to dismiss it at this time. (emphasis added)
The enthusiasm to settle using CCAA that is expressed by private law firms working on contingency fees gets equal weight with the desire of the Attorney General to seek justice in other courts.
[19] In this regard it bears repeating that six of the provinces oppose Ontario's position on this motion and wish to give the CCAA process an opportunity to succeed. Overall, there is simply no principled basis to distinguish the Ontario Action from any of the other outstanding actions, all of which have been stayed.
